Liounis v. Williams
ORDER ADOPTING 7 REPORT AND RECOMMENDATION. The Court DENIES the Petitioner's 28 U.S.C. 2241 Petition [ECF No. 1 and ORDERS that the same be DISMISSED WITH PREJUDICE. The Clerk is DIRECTED to strike this matter from the Courts active docket , enter a separate judgment in favor of the Respondent. Signed by Chief Judge Gina M. Groh on 1/27/17. (njz) copy mailed to pro se pet via cert. return rec't mail (Additional attachment(s) added on 1/27/2017: # 1 Certified Mail Return Receipt) (njz).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO.: 3:15-CV-80
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of
the Report and Recommendation (AR&R@) 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 an R&R. Magistrate Judge Seibert issued his R&R [ECF No. 7]
on July 18, 2016. In the R&R, he recommends that the Petitioner=s 28 U.S.C. ' 2241
Petition [ECF No. 1] be denied and dismissed with prejudice. For the reasons set forth
below, the court ADOPTS Magistrate Judge Seibert’s R&R and DENIES and DISMISSES
the Petitioner’s § 2241 Petition WITH PREJUDICE.
Objections to Magistrate Judge Seibert=s R&R were due within fourteen days of
the Petitioner being served with a copy of the same. 28 U.S.C. ' 636(b)(1)(C); Fed. R.
Civ. P. 72(b). Service was accepted at the Gilmer Federal Correctional Institution in
Glenville, West Virginia, on July 22, 2016, and the Petitioner timely filed arguments in
opposition thereto. The Court is aware of the Petitioner’s pro se status. Pro se pleadings
are held to less stringent standards than those drafted by licensed attorneys. See Gordon
v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Accordingly, although the Court construes
liberally the Petitioner’s arguments in opposition to the R&R, it will not create objections
where none exist.
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, objections to a magistrate judge’s R&R must be specific. See Orpiano v.
Johnson, 687 F.2d 44, 48 (4th Cir. 1982); see also Parker v. Comm’r of Soc. Sec., No.
4:11cv00030, 2012 WL 1356593, at *3 (W. D. Va. Apr. 19, 2012). General objections or
mere reiterations of arguments already presented to the magistrate judge “have the same
effect as a failure to object,” and thus do not warrant de novo review. Parker, 2012 WL
1356593, at *3 (internal quotations and citation omitted); see also United States v.
Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007); Page v. Lee, 337 F.3d 411, 416 n.3 (4th
The Court will review the portions of the R&R to which “general and
conclusory” objections have been made for clear error. McGhee v. Colvin, 6:14-cv02644-JMC, 2015 WL 5707866, at *1 (Sept. 25, 2015) (internal quotations and citation
omitted). Here, all of the Petitioner’s arguments are, in some form, reiterations of claims
or factual scenarios already presented. Thus, in the absence of specific objections to the
R&R, this Court is not required to provide an explanation for adopting the
recommendation. See id. at *2.
Therefore, upon careful review of the R&R, it is the opinion of this Court that
Magistrate Judge Seibert=s Report and Recommendation [ECF No. 7] should be, and is,
hereby ORDERED ADOPTED for the reasons more fully stated therein.1 Accordingly,
the Court DENIES the Petitioner=s 28 U.S.C. ' 2241 Petition [ECF No. 1] and ORDERS
that the same be DISMISSED WITH PREJUDICE.
Insofar as the Petition raises arguments that fall under 28 U.S.C. § 2255, the
Petitioner has not met the requirements for issuance of a certificate of appealability. A
court may issue a certificate of appealability Aonly if the applicant has made a substantial
showing of the denial of a constitutional right.@ 28 U.S.C. ' 2253(c)(2). If a district court
denies a petitioner=s claims on the merits, then A[t]he petitioner must demonstrate that
reasonable jurists would find the district court=s assessment of the constitutional claims
debatable or wrong.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000). AIf, on the other hand,
the denial was procedural, the petitioner must show >that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.=@ United States v. McRae, 793 F.3d 392, 397 (4th Cir. 2015) (quoting
Slack, 529 U.S. at 484). Here, upon a thorough review of the record, the Court concludes
that the Petitioner has not made the requisite showing.
The Clerk is DIRECTED to strike this matter from the Court’s active docket, enter
a separate judgment in favor of the Respondent, and transmit a copy of this Order to the
pro se Petitioner by certified mail, return receipt requested, to his last known address as
shown on the docket.
DATED: January 27, 2017
The Court notes that the Petitioner’s Second Circuit appellate proceedings concluded upon issuance of a
mandate on July 25, 2016—one week after the R&R was submitted.
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