Boyles v. USA
ORDER 3 Report and Recommendations: It is the opinion of this Courtthat the Magistrate Judges Report and Recommendation 3 should be, and is, hereby ORDERED ADOPTED. The § 2255 Motion to Vacate, Set Aside, or CorrectSentence 1 is DENIE D WITHOUT PREJUDICE, and this matter is hereby ORDERED STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment in favor of the respondent. It is further ORDERED that, pursuant to Rule 11(a) of the Rules Governing Section2254 and Section 2255 Cases, this Court declines to issue a certificate of appealability. Signed by District Judge John Preston Bailey on 10/11/16. (Attachments: # 1 Certified Mail Return Receipt)(jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ARICA M. BOYLES,
Civil Action No.
Crim. Action No.
UNITED STATES OF AMERICA,
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge Michael John Aloi.
Pursuant to Local Rule, this action was referred to Magistrate Judge Aloi for submission
of a proposed report and a recommendation (“R&R”). Magistrate Judge Aloi filed his R&R
on September 14, 2016 [Crim. Doc. 109 / Civil Doc. 3]. In that filing, the magistrate judge
recommended that this Court deny and dismiss the petitioner’s § 2255 petition as it was
incorrectly and untimely filed as a § 2255 motion.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Aloi’s R&R were due within
fourteen (14) days of filing of the same, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ.
P. 72(b). The docket reflects that the petitioner accepted service on September 23, 2016
[Crim. Doc. 111]. To date, no objections to the R&R have been filed. Accordingly, this
Court will review the report and recommendation for clear error.
Upon careful review of the report and recommendation, it is the opinion of this Court
that the Magistrate Judge’s Report and Recommendation [Crim. Doc. 109 / Civ. Doc.
3] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the
magistrate judge’s report. As such, the § 2255 Motion to Vacate, Set Aside, or Correct
Sentence [Crim. Doc. 104 / Civ. Doc. 1] is DENIED WITHOUT PREJUDICE, and this
matter is hereby ORDERED STRICKEN from the active docket of this Court. The Clerk
is DIRECTED to enter judgment in favor of the respondent.
It is further ORDERED that, pursuant to Rule 11(a) of the Rules Governing Section
2254 and Section 2255 Cases, this Court declines to issue a certificate of appealability as
petitioner has not made a substantial showing of a denial of a constitutional right. 28
U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy
§2253(c), a petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: October 11, 2016.
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