Collins v. USA
ORDER ADOPTING 6 REPORT AND RECOMMENDATION: denying and dismissing with prejudice 6 Motion to Vacate, Set Aside or Correct Sentence (2255), DENIES a certificate of appealability. Signed by Chief Judge Gina M. Groh on 10/18/16. (njz) copy mailed to pro se pet via cert. return rec't mail (Additional attachment(s) added on 10/18/2016: # 1 Certified Mail Return Receipt) (njz).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CRIMINAL ACTION NO.: 3:13-CR-44
CIVIL ACTION NO.: 3:15-CV-22
UNITED STATES OF AMERICA,
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court for consideration of a Report and Recommendation
(“R&R”) issued by 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 an R&R. On July 11, 2016, Magistrate Judge Seibert issued his R&R, in which he
recommends that this Court deny the Petitioner’s second motion to appoint counsel [ECF
No. 82],1 grant the Petitioner’s motion to amend or supplement his 28 U.S.C. § 2255
petition [ECF No. 84] and deny and dismiss with prejudice the Petitioner’s § 2255 petition
[ECF No. 68].
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, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections are made.
All ECF numbers referenced in this Order correlate to criminal action number 3:13-CR-44.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner
constitutes a waiver of de novo review and a petitioner’s right to appeal this Court’s Order.
28 U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United
States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
In this case, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal
Rules of Civil Procedure, objections to Magistrate Judge Seibert’s R&R were due within
fourteen days after being served with a copy of the R&R. The Petitioner was served with
the R&R on July 13, 2016. To date, neither party has filed objections. Accordingly, the
Court will review the R&R for clear error.
Upon careful review of the record, and finding no error, it is the opinion of this Court
that Magistrate Judge Seibert’s Report and Recommendation should be, and is, hereby
ORDERED ADOPTED for the reasons more fully stated therein. The Court ORDERS
that the Petitioner’s second motion to appoint counsel [ECF No. 82] is DENIED. The
Court GRANTS the Petitioner’s motion to amend or supplement his § 2255 petition [ECF
No. 84]. However, upon consideration of the Petitioner’s original § 2255 petition and
supplemental arguments, the Court ORDERS that the Petitioner’s § 2255 petition [ECF
No. 68] is DENIED and DISMISSED WITH PREJUDICE.
Upon an independent examination of the record, the Court finds that the Petitioner
has failed to make “a substantial showing of the denial of a constitutional right,” and
therefore DENIES a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
and to mail a copy to the pro se Petitioner by certified mail, return receipt requested.
DATED: October 18, 2016
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