Vining v. Driver

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION re: 20 Report and Recommendation re: 1 Petition for Writ of Habeas Corpus filed by Larry Gene Vining; and orders 1 Petition for Writ of Habeas Corpus filed by Larry Gene Vining stricken from the active docket. Signed by Chief Judge John Preston Bailey on 2/2/09. Copy mailed to pro se petitioner by certified mail return receipt.(cwm)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG LARRY GENE VINING, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION On this day, the above-styled matter came before the Court for consideration of the Report and Recommendation of United States Magistrate Judge John S. Kaull. By Standing Order entered on March 24, 2000, this action was referred to Magistrate Judge Kaull for submission of a proposed report and a recommendation ("R & R"). Magistrate Judge Kaull filed his R & R on January 8, 2008 [Doc. 20]. In that filing, the magistrate judge recommended that this Court deny and dismiss petitioner's habeas petition [Doc. 1] with prejudice. 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, the 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 CIVIL ACTION NO. 3:07-CV-144 (BAILEY)

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review and the petitioner's 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 Kaull's R & R were due within ten (10) days of receipt of the R & R, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket shows Mr. Vining accepted service of the R & R on

January 12, 2008. Neither party filed objections to the R & R. Accordingly, this Court will review the report and recommendation for clear error. Upon careful review of the R & R, it is the opinion of this Court that the Magistrate Judge's Report and Recommendation [Doc. 20] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Accordingly, the Court hereby DISMISSES with prejudice the plaintiff's Petition for Writ of Habeas Corpus [Doc. 1] and ORDERS it STRICKEN from the active docket of this Court. It is so ORDERED. The Clerk is directed to transmit copies of this Order to all counsel of record herein and to mail a copy to the pro se plaintiff. DATED: February 2, 2009.

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