Harper v. USA

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 11/20/2019. Copy mailed to pro se petitioner by CMRR. (cwm) (Additional attachment(s) added on 11/20/2019: # 1 Certified Mail Return Receipt) (cwm).

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

CRIMINAL ACTION NO.: 3:13-CR-47-1
CIVIL ACTION NO.: 3:18-CV-31
(GROH)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
Now before the Court is the Report and Recommendation (AR&R@) of United States
Magistrate Judge Robert W. Trumble. Pursuant to this Court’s Local Rules, this action
was referred to Magistrate Judge Trumble for submission of a proposed R&R.
Magistrate Judge Trumble issued his R&R [ECF No. 137] 1 on October 23, 2019.
Therein, Magistrate Judge Trumble recommends that the Petitioner=s Motion [ECF No.
125] be denied and dismissed with prejudice as untimely filed.
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 a petitioner’s right to appeal this Court’s Order. 28 U.S.C. ' 636(b)(1); Snyder v.

1 All CM/ECF references are to the criminal number, 3:13-CR-47-1, unless otherwise noted.

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 Trumble=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 R&R was mailed to
the Petitioner on October 23, 2019. ECF No. 137. The Petitioner accepted service on
October 29, 2019. ECF No. 138. To date, no objections have been filed. 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
Trumble=s Report and Recommendation [Civil Action No. 3:18-CV-31, ECF No. 4;
Criminal Action No. 3:13-CR-47-1, ECF No. 137] should be, and is hereby, ORDERED
ADOPTED for the reasons more fully stated therein. Therefore, the Petitioner’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody [Civil Action No. 3:18-CV-31, ECF No. 1; Criminal Action No. 3:13-CR-47-1, ECF
No. 125] is DENIED and DISMISSED WITH PREJUDICE.
As a final matter, upon an independent review of the record, this Court hereby
DENIES the Petitioner a Certificate of Appealability, finding that he has failed to make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
This matter is ORDERED STRICKEN from the Court’s active docket. 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 docket sheet.
DATED: November 20, 2019

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