Anthony v. United States of America

Filing 571

MEMORANDUM OPINION AND ORDER as to Kevin Ivan Anthony: The court ADOPTS the 567 Proposed Findings and Recommendation of Magistrate Judge VanDervort; DISMISSES plaintiff's 512 MOTION to Vacate, Set Aside or Correct Sentence (2255) and directs the Clerk to remove this case from the court's active docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 7/14/2011. (cc: Plaintiff, Pro Se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
KEVIN IVAN ANTHONY
Plaintiff,
v.

CIVIL ACTION NO. 1:08-0904
(Criminal No. 1:02-00241-03)

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of
findings and recommendations regarding disposition pursuant to 28
U.S.C.A. § 636(b)(1)(B).

Magistrate Judge VanDervort submitted to

the court his Findings and Recommendation on June 15, 2011, in
which he recommended that the District Court dismiss plaintiff’s
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence by a person in federal custody, and remove this matter
from the court’s docket.
In accordance with the provisions of 28 U.S.C.A. § 636(b),
the parties were allotted fourteen days, plus three mailing days,
in which to file any objections to Magistrate Judge VanDervort’s
Findings and Recommendation.

The failure of any party to file

such objections constitutes a waiver of such party's right to a de
novo review by this court.
Cir. 1989).

Snyder v. Ridenour, 889 F.2d 1363 (4th

The parties failed to file any objections to the Magistrate
Judge's Findings and Recommendation within the requisite period.
Having reviewed the Findings and Recommendation filed by
Magistrate Judge VanDervort, the court adopts the findings and
recommendations contained therein.

Accordingly, the court hereby

DISMISSES plaintiff’s motion under 28 U.S.C. § 2255, and directs
the Clerk to remove this case from the court’s active docket.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and that
any dispositive procedural ruling is likewise debatable.

Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,
529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th
Cir. 2001).

The court concludes that the governing standard is

not satisfied in this instance.

Accordingly, the court DENIES a

certificate of appealability.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to plaintiff and counsel of record.
IT IS SO ORDERED this 14th day of July, 2011.
ENTER:

2

David A. Faber
Senior United States District Judge