Silverman v. USA

Filing 9

ORDER ADOPTING 7 REPORT AND RECOMMENDATION: denying and dismissing with prejudice 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Chief Judge Gina M. Groh on 1/25/17. (njz) copy mailed to pro se pet via cert. return rec't mail (Additional attachment(s) added on 1/25/2017: # 1 Certified Mail Return Receipt) (njz).

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

STEVEN LAWRENCE SILVERMAN,
Petitioner,
v.
CIVIL ACTION NO.: 3:16-CV-64
CRIMINAL ACTION NO.: 3:00-CR-51-1
(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 (AR&R@) of United States Magistrate Judge Michael
John Aloi. Pursuant to this Court=s Local Rules, this action was referred to Magistrate
Judge Aloi for submission of a proposed R&R. Magistrate Judge Aloi issued his R&R
[ECF No. 109] 1 on August 9, 2016. In the R&R, he recommends that the Petitioner=s 28
U.S.C. ' 2255 Petition [ECF No. 94] be denied and dismissed and that the Petitioner’s
Motions to Appoint Counsel [ECF Nos. 95 & 103] be denied as moot. 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). Failure to file

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All ECF numbers referenced in this Order correlate to criminal action number 3:00-CR-51-1.

timely objections constitutes a waiver of de novo review and of a 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 Aloi=s R&R were due within fourteen plus three
days of the Petitioner being served with a copy of the same. 28 U.S.C. ' 636(b)(1); Fed.
R. Civ. P. 72(b). Service was accepted at the Lewisburg U.S. Penitentiary on August 12,
2016. The Petitioner therefore had until August 29, 2016, to file any objections to the
Magistrate Judge’s R&R. To date, no objections have been filed. Therefore, after
allowing for additional time to ensure personal receipt, the Court finds that the deadline
for the Petitioner to submit objections to the R&R has passed. Accordingly, this Court will
review the R&R for clear error.
Upon careful review of the R&R, it is the opinion of this Court that Magistrate Judge
Aloi=s Report and Recommendation [ECF No. 109] should be, and is, hereby ORDERED
ADOPTED for the reasons more fully stated therein.
Accordingly, the Court DENIES the Petitioner=s 28 U.S.C. ' 2255 Petition
[ECF.No..94] and ORDERS that the same be DISMISSED WITH PREJUDICE. Further,
the Court ORDERS the Petitioner’s Motions to Appoint Counsel [ECF Nos. 95 & 103] be
DENIED as moot. This matter is ORDERED STRICKEN from the Court’s active docket.
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

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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 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, at
his last known address as shown on the docket sheet.
DATED: January 25, 2017

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