Jones v. Waid

Filing 22

ORDER ADOPTING 20 REPORT AND RECOMMENDATION; granting 13 Motion to Dismiss Petition as Successive filed by Teresa Waid. The Court denies and dismisses Petitioner's 1 Petition and orders the same striken from the docket. Signed by Chief Judge John Preston Bailey on 4/14/2009. 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

WILLIAM JONES, Petitioner, v. CIVIL ACTION NO. 3:08-CV-171 (BAILEY) TERESA WAID, Warden, Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION On this day, the above-styled matter came before the Court for consideration of the Opinion/Report and Recommendation of United States Magistrate Judge David J. Joel. By Standing Order this action was referred to Magistrate Judge Joel for submission of a proposed report and a recommendation ("R & R"). Magistrate Judge Joel filed his R & R on March 4, 2009 [Doc. 20]. In that filing, the magistrate judge recommended that this Court dismiss this petition under § 2254 [Doc. 1] as successive. 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 Joel's R & R were due within ten (10) days of 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 9, 2009. To date, no objections 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 [Doc. 20] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Accordingly, this Court is of the opinion that the Respondent's Motion to Dismiss Petition as Successive [Doc. 13] should be, and the same hereby is, GRANTED. As such, this Court hereby DENIES and DISMISSES the petitioner's petition [Doc. 1]. Therefore, this matter is hereby ORDERED STRICKEN from the active docket of this Court. 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: April 14, 2009.