Gordon v. Saad

Filing 23

ORDER ADOPTING 20 REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 1/21/2020. Copy to pro se petitioner by cm,rrr.(cmd) (Additional attachment(s) added on 1/21/2020: # 1 Certified Mail Return Receipt) (cmd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
MARIO L. GORDON,
Petitioner,
v.

CIVIL ACTION NO.: 3:18-CV-91
(GROH)

JENNIFER SAAD, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
Now before the Court is the Report and Recommendation (“R&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. 20] on December 20, 2019.
Therein, Magistrate Judge Trumble recommends the Petitioner’s § 2241 petition [ECF
No. 10] be denied and dismissed with prejudice because the identical issue has already
been decided in a prior § 2255 proceeding in the United States District Court for the
Southern District of Illinois. Alternatively, Magistrate Judge Trumble recommends the
Petitioner’s § 2241 petition [ECF No. 10] be denied and dismissed without prejudice
because the Petitioner fails to meet the test set forth in United States v. Wheeler, 886
F.3d 415 (4th Cir. 2018).
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.
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 by certified mail on December 20, 2019. ECF No. 20. The Petitioner
accepted service on December 24, 2019. ECF No. 22. 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 [ECF No. 20] should be, and is hereby,
ORDERED ADOPTED for the reasons more fully stated therein.

Therefore, the

Petitioner’s § 2241 Petition [ECF No. 10] is DENIED and DISMISSED WITH PREJUDICE
because the identical issue has already been decided in a prior § 2255 proceeding by the
Southern District of Illinois.
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 pro se Petitioner by certified
mail, return receipt requested, at his last known address as reflected on the docket sheet.
DATED: January 21, 2020

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