Saylor v. USA

Filing 5

ORDER ADOPTING 3 REPORT AND RECOMMENDATION and DENYING and DISMISSING 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Megan Saylor. This case is ordered stricken from the active docket. Signed by Chief Judge Gina M. Groh on 6/27/2016. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 6/27/2016: # 1 Certified Mail Return Receipt) (tlg).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
MEGAN SAYLOR,
Petitioner,
v.

CIVIL ACTION NO.: 3:16-CV-48
CRIMINAL ACTION NO.: 3:15-CR-20-26
(GROH)

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 (“R&R”) of United States Magistrate Judge Robert W.
Trumble [ECF No. 1833 in Criminal Action No. 3:15-CR-20-26; ECF No. 3 in Civil Action
No. 3:16-CV-48]. Magistrate Judge Trumble recommends that this Court enter an order
denying and dismissing the Petitioner’s Motion to Vacate [ECF No. 1783 in Criminal Action
No. 3:15-CR-20-26; ECF No. 1 in Civil Action No. 3:16-CV-48], which was filed under 28
U.S.C. § 2255. Upon review and consideration, this Court hereby ADOPTS the magistrate
judge’s R&R and DENIES the Petitioner’s Motion.
In reviewing an R&R, this Court is required, pursuant to 28 U.S.C. § 636(b), to
conduct a de novo review of those portions of a 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). Failure to file timely objections constitutes a waiver of de novo
review and of a party’s right to appeal this Court’s Order. 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, objections to Magistrate Judge Trumble’s R&R were due within fourteen plus
three days of the Petitioner being served with a copy of the same. See 28 U.S.C. § 636(b);
Fed. R. Civ. P. 6(d). Service of the R&R was accepted at Federal Prison Camp, Alderson,
where the Petitioner is presently incarcerated, on May 23, 2016. After allowing for
additional time to ensure personal receipt, the Court now finds that the deadline for the
Petitioner to submit objections to the R&R has passed. Because no objections have been
filed, this Court will review the R&R for clear error.
On January 11, 2016, this Court sentenced the Petitioner to two ten-month terms
of incarceration, ordered to run concurrently with each other. Shortly thereafter, the
Petitioner moved the Court to modify her sentence to a “split sentence” by ordering that the
Petitioner serve a five-month term of incarceration followed by a five-month term of home
confinement. Finding no basis for modifying the Petitioner’s sentence, the Court denied the
motion. In the instant Motion to Vacate, the Petitioner moves the Court to reconsider
imposing a split sentence. In support of her Motion, the Petitioner argues that her courtappointed counsel was ineffective for several reasons. Specifically, the Petitioner avers that
her attorney met with her only three times, that her attorney advised her that she would not
be sentenced to a term of incarceration, and that her attorney did not collect or present any
witness statements during her sentencing hearing. In his R&R, Magistrate Judge Trumble
found the Petitioner’s arguments to be both foreclosed by the Petitioner’s valid collateral
attack waiver and otherwise without merit.

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Upon careful consideration of the magistrate judge’s Report and Recommendation
and the remainder of the record in this case, this Court finds no clear error. It is ORDERED
that the Report and Recommendation [ECF No. 1833 in Criminal Action No. 3:15-CR-2026; ECF No. 3 in Civil Action No. 3:16-CV-48] is hereby ADOPTED in its entirety. The
Petitioner’s Motion Requesting a Split Sentence [ECF No. 1827 in Criminal Action No. 3:15CR-20-26] is DENIED. The Court ORDERS that the Petitioner’s Motion to Vacate under
28 U.S.C. § 2255 [ECF No. 1783 in Criminal Action No. 3:15-CR-20-26; ECF No. 1 in Civil
Action No. 3:16-CV-48] is DENIED and is hereby DISMISSED. This matter is ORDERED
STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter a
separate judgment order in favor of the Respondent.
The Petitioner has not met the requirements for issuance of a certificate of
appealability. A court may issue a certificate of appealability “only 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 “[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).
“If, 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.

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The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
herein and to the pro se Petitioner at her last known address.
DATED: June 27, 2016

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