Jackson v. USA

Filing 8

ORDER ADOPTING 6 REPORT AND RECOMMENDATION; dismissing with prejudice Petitioner's 1 Motion to Vacate, Set Aside or Correct Sentence (2255) as to Andrew Charles Jackson (1); denying as moot Petitioner's 7 Motion to Withdraw. The co urt DENIES a certificate of appeability. Signed by Chief Judge John Preston Bailey on 4/30/2013. Copy sent certified mail, return receipt to pro se Petitioner. (tlg) (Additional attachment(s) added on 4/30/2013: # 1 certified mail receipt) (tlg).

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

ANDREW CHARLES JACKSON,
Petitioner
v.

CIVIL ACTION NO. 3:13-CV-26
CRIMINAL ACTION NO. 3:00-CR-6-1
(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 David J. Joel. By Local
Rule, 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 April 3, 2013 [Civ.
Doc. 6; Cr. Doc. 608]. In that filing, the magistrate judge recommended that this Court
deny with prejudice the petitioner’s Motion to Vacate, Set Aside or Correct Sentence
Pursuant to 28 U.S.C. § 2255 [Civ. Doc. 1; Cr. Doc. 600] as untimely and for lack of
jurisdiction as a second or successive motion for which the petitioner did not receive
authorization from the Fourth Circuit Court of Appeals to file [Civ. Doc. 6 at 6; Cr. Doc. 608
at 6].
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
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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
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b).
Although the docket sheet does not reflect the date of service; the website for the United
States Postal Service reflects that service of the R&R, which was mailed under certified
mail item number 7011 0470 0002 0396 1313, was accepted on April 9, 2013. On April 15,
2013, this Court received a pro se motion from the petitioner stating that he “would like to
withdraw motion 3:13cv26 off the docket without prejudice” [Civ. Doc. 7; Cr. Doc. 610]. In
this motion, the petitioner does not include any reference to the magistrate judge’s R&R or
any objection to the magistrate judge’s conclusion that his petition should be dismissed with
prejudice [See id.]. Furthermore, the petitioner never filed any additional documents
containing any objections to the magistrate judge’s R&R. As such, 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. 6; Cr. Doc. 608]
should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the
magistrate judge’s report. As such, this Court DISMISSES with prejudice the petitioner’s
Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 [Civ. Doc.

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1; Cr. Doc. 600] as untimely and for lack of jurisdiction as a second or successive motion
for which the petitioner did not receive authorization from the Fourth Circuit Court of
Appeals to file. Furthermore, the petitioner’s April 1, 2013, Application to Proceed In Forma
Pauperis [Cr. Doc. 607] and the petitioner’s April 15, 2013, pro se Motion to Withdraw [Civ.
Doc. 7; Cr. Doc. 610] are hereby DENIED as moot. Accordingly, 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.
As a final matter, this Court finds that the petitioner has not made the requisite
”substantial showing of the denial of a constitutional right ” for a certificate of appealability;
accordingly, this Court hereby DENIES a certificate of appealability to the extent that the
petitioner might seek one from this Court. See 28 U.S.C. § 2253(c)(2).
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 30, 2013.

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