Smith v. USA

Filing 7

ORDER ADOPTING CORRECTED 6 REPORT AND RECOMMENDATION; finding as moot 5 Report and Recommendations; Petitioner's Motion 1 to Vacate/Set Aside/Correct Sentence (2255) filed by Matthew Dwayne Smith is denied. The Court orders case stricken from the active docket. Signed by Chief Judge John Preston Bailey on 5/7/2009. Copy sent certified mail, return receipt to pro se Petitioner.(tlg)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG

MATTHEW DWAYNE SMITH, Petitioner, v. CIVIL ACTION NO. 3:08-CV-124 CRIMINAL ACTION NO. 3:05-CR-7-1 (BAILEY)

UNITED STATES OF AMERICA, Respondent. ORDER ADOPTING CORRECTED REPORT AND RECOMMENDATION On this day, the above-styled matter came before the Court for consideration of the Corrected Report and Recommendation of United States Magistrate Judge James E. Seibert. By Standing Order, this action was referred to Magistrate Judge Seibert for submission of a proposed report and a recommendation ("R & R"). Magistrate Judge Seibert filed his Corrected R & R on February 26, 2009 [Civ. Doc. 6 / Crim. Doc. 454]. In that filing, the magistrate judge recommended that this Court deny the § 2255 petition. 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 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 Seibert's R & R were due within ten (10) days of its receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service was accepted on March 2, 2009. See Crim. Doc. 455. To date, neither party has filed objection. recommendations for clear error. Upon careful review of the report and recommendation, it is the opinion of this Court that the Magistrate Judge's Corrected Report and Recommendation [Civ. Doc. 6 / Crim. Doc. 454] should be, and the same is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Therefore, this Court hereby DENIES the petitioner's § 2255 motion [Civ. Doc. 1 / Crim. Doc. 405] and ORDERS it STRICKEN from the active docket of this Court. As a final matter, the previous R&R [Civ. Doc. 5 / Crim. Doc. 440] is hereby TERMINATED as moot. 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: May 7, 2009. Accordingly, this Court will review the report and