Billiter v. Ballard

Filing 66

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 8/25/2021. Copy sent certified mail, return receipt to pro se Petitioner. (tlg) (Additional attachment(s) added on 8/25/2021: # 1 Certified Mail Return Receipt) (tlg).

Case 3:17-cv-00022-GMG Document 66 Filed 08/25/21 Page 1 of 3 PageID #: 541

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
HAROLD M. BILLITER,
Petitioner,
v.

CIVIL ACTION NO.: 3:17-CV-22
(GROH)

RALPH TERRY,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
Now before the Court is the Report and Recommendation (AR&R@) of United States
Magistrate Judge James P. Mazzone. Pursuant to this Court’s Local Rules, this action
was referred to Magistrate Judge Mazzone for submission of a proposed R&R.
Magistrate Judge Mazzone issued his R&R on July 15, 2021. ECF No. 57. In his R&R,
Magistrate Judge Mazzone recommends that the Petitioner’s § 2254 petition be
dismissed with prejudice and the Respondent’s motion to dismiss for failure to exhaust
administrative remedies be terminated as moot.
Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court must conduct a de novo review of
the magistrate judge=s findings where 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 to which no objection is made. Thomas v. Arn, 474 U.S. 140,
150 (1985). Failure to file timely objections constitutes a waiver of de novo review and
of the Petitioner’s right to appeal this Court’s Order. 28.U.S.C. ' 636(b)(1); Snyder v.

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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 Mazzone=s R&R were due within fourteen plus
three days of service. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). The Petitioner
accepted service on July 19, 2021. 1 ECF No. 61. To date, no objections have been
filed. Accordingly, this Court will review the portions of the R&R to which the Petitioner
objects de novo and the remainder of the R&R for clear error.
Upon careful review and thoughtful consideration of the R&R, it is the opinion of
this Court that Magistrate Judge Mazzone=s Report and Recommendation should be, and
is hereby, ORDERED ADOPTED for the reasons more fully stated therein. ECF No. 57.
Accordingly, the Petitioner’s § 2254 petition is DISMISSED WITH PREJUDICE. ECF
No. 1. The Court further ORDERS that the Respondent’s Motion to Dismiss based on
failure to exhaust administrative remedies [ECF No. 20] and the Petitioner’s Motion for
Leave to Amend [ECF No. 59] be TERMINATED as MOOT.
This matter is ORDERED STRICKEN from the Court’s active docket.
As a final matter, upon an independent review of the record, this Court hereby
DENIES the Petitioner a Certificate of Appealability, finding that no juror “would find it
debatable whether [this Court] was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).
The Clerk of Court is DIRECTED to mail a copy of this Order to the Petitioner by
certified mail, return receipt requested, at his last known address as reflected on the

On August 4, 2021, the Court granted the Petitioner’s motion for an extension to file his objections
to the R&R, making his objections due August 25, 2021. ECF No. 63.
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docket sheet.
DATED: August 25, 2021

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