Barnhart v. USA

Filing 7

ORDER ADOPTING 5 REPORT AND RECOMMENDATION and dismissing with prejudice Petitioner's 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Joseph Grant Barnhart. The case is ordered STRICKEN from the active docket. Signed by Chief Judge John Preston Bailey on 3/19/2013. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 3/19/2013: # 1 certified mail receipt) (tlg).

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

JOSEPH GRANT BARNHART,
Petitioner,
v.

CIVIL ACTION NO. 3:12-CV-138
CRIMINAL ACTION NO. 3:11-CR-63
(BAILEY)

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 James E. Seibert. By
Local Rule, this action was referred to Magistrate Judge Seibert for submission of a
proposed report and a recommendation (“R&R”). Magistrate Judge Seibert filed his R&R
on February 19, 2013 [Civ. Doc. 5, Crim. Doc. 53]. In that filing, the magistrate judge
recommended that this Court deny Petitioner’s § 2255 Motion and dismiss the case with
prejudice [Civ. Doc. 1, Crim. Doc. 41].
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
fourteen (14) 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 February 22, 2013 [Civ. Doc. 6, Crim.
Doc. 54]. To date, no objections have been filed.
Upon careful review of the report and recommendation, it is the opinion of this Court
that the magistrate judge’s Report and Recommendation [Civ. Doc. 5, Crim. Doc. 53]
should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the
magistrate judge’s report. As such, this Court hereby DISMISSES with prejudice the
petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [Civ.
Doc. 1, Crim. Doc. 43]. Therefore, this matter is hereby ORDERED STRICKEN from the
active docket of this Court. The Clerk is directed to enter a separate judgment in favor of
the respondent.
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: March 19, 2013.

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