Eldridge v. USA

Filing 12

ORDER ADOPTING 10 REPORT AND RECOMMENDATION: The Court hereby DENIES 1 Petitioners Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence and DISMISSES this case with prejudice. Accordingly, this matter is ORDERED STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment for the Respondent. The Court DENIES a certificate of appealability. Signed by Chief Judge Gina M. Groh on 3/26/2015. Copy to pro se petitioner by cm,rrr. (cmd) (Additional attachment(s) added on 3/26/2015: # 1 Certified Mail Return Receipt) (cmd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
TYREE AARON ELDRIDGE,
Petitioner,
v.

CIVIL ACTION NO.: 3:14-CV-28
CRIMINAL ACTION NO.: 3:12-CR-6
(GROH)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING OPINION/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.
Pursuant to this Court’s Local Rules, 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 25, 2015 [ECF 10; ECF 90]. In that filing, Magistrate
Judge Seibert recommends that this Court deny the Petitioner’s Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence [ECF 67] as untimely.
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 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). Objections to Magistrate Judge Seibert’s R & R were due within
fourteen days of being served with a copy of the same, pursuant to 28 U.S.C. § 636(b)(1)
and Federal Rule of Civil Procedure 72(b). The docket reflects that service was accepted
on March 2, 2015. No party has filed objections to the R & R. Accordingly, this Court will
review the R & R 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 should be, and is, hereby
ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report.
Accordingly, the Court hereby DENIES the Petitioner’s Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence and DISMISSES this case with prejudice.
Accordingly, this matter is ORDERED STRICKEN from the active docket of this Court. The
Clerk is DIRECTED to enter judgment for the Respondent.
Pursuant to 28 U.S.C. § 2253(c), the Court must determine whether a certificate of
appealability should issue. A certificate of appealability may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). An applicant can satisfy this standard by demonstrating that reasonable jurists
would find that his constitutional claims are debatable and that any dispositive procedural
rulings are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.
2001). Upon reviewing the record, the Court finds that the Petitioner has not made the
requisite showing. Accordingly, the Court DENIES a certificate of appealability.
The Clerk is directed to transmit copies of this Order to all counsel of record and pro

se parties.
DATED: March 26, 2015