Shrader v. Ives

Filing 386

MEMORANDUM OPINION AND ORDER: the Court ADOPTS the 385 Proposed Findings and Recommendation by Magistrate Judge VanDervort and ORDERS as follows: the Petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence b y a Person in Federal Custody 1 shall be RE-DESIGNATED as a Petition Under 28 U.S.C. Section 2241 for Writ of Habeas Corpus by a Person in Federal Custody; the Petitioner's Motion to Withdraw his Section 2241 Petition 379 is GRANTED; the Pet itioner's Motion in Objection or in the Alternative Motion for Stay 378 is TERMINATED AS MOOT; the Petitioner's Petition Under 28 U.S.C. Section 2241 for Writ of Habeas Corpus by a Person in Federal Custody 1 is DISMISSED; and this matter is REMOVED from the Court's docket. Signed by Judge Irene C. Berger on 8/27/2013. (certified cc: Magistrate Judge VanDervort, counsel of record and any unrepresented party) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD DIVISION

THOMAS CREIGHTON SHRADER,
Petitioner,
v.

CIVIL ACTION NO. 1:13-cv-09386

RICHARD B. IVES,
Respondent.

MEMORANDUM OPINION AND ORDER
The Court has reviewed the various pleadings in this matter including the Petitioner=s
March 5, 2013 Petition Under 28 U.S.C. ' 2241 for Writ of Habeas Corpus By a Person in Federal
Custody (Document 1) filed in the Central District of California, and the Petitioner’s July 19, 2013
Motion to withdraw his 2241 Petition (Document 379).
By Order (Document 8) entered on April 24, 2013, the District Court for the Central
District of California transferred Petitioner’s Section 2241 Petition to this District. By Standing
Order (Document 11) entered on May 2, 2013, this action was referred to the Honorable R. Clarke
VanDervort, United States Magistrate Judge, for submission to this Court of proposed findings of
fact and recommendation for disposition, pursuant to 28 U.S.C. ' 636.
By Order (Document 371) entered on May 23, 2013, the Magistrate Judge re-designated
the Petitioner’s Section 2241 Petition as a Motion Under 28 U.S.C. ' 2255 to Vacate, Set Aside or
Correct Sentence by a Person in Federal Custody. Also on May 23, 2013, the Magistrate Judge
1

notified the Petitioner that if he does not wish to have his Section 2241 Petition re-characterized as
a motion under Section 2255, he should inform the Court in writing by June 14, 2013. (Document
375 at 3.) On June 10, 2013, the Petitioner filed his response titled Motion in Objection or in the
Alternative Motion for Stay (Document 378), wherein he objects to having his 2241 Petition
re-designated as a 2255 Motion and requests that the Court “hold or stay any further proceeding”
in this matter until the District Court for the Central District of California rules on his pending
motion. Subsequently, on July 19, 2013, the Petitioner filed a Motion (Document 379) to
withdraw his 2241 Petition.
On August 5, 2013, the Magistrate Judge submitted a Proposed Findings and
Recommendation (Document 385) wherein it is recommended that this Court re-designate the
Petitioner’s Motion Under 28 U.S.C. ' 2255 to Vacate, Set Aside or Correct Sentence by a Person
in Federal Custody (Document 1) as a Petition Under 28 U.S.C. ' 2241 for Writ of Habeas Corpus
By a Person Federal Custody, grant the Petitioner’s Motion to withdraw his 2241 Petition
(Document 379), dismiss the Petitioner’s Petition Under 28 U.S.C. ' 2241 for Writ of Habeas
Corpus By a Person Federal Custody (Document 1), and remove this matter from the Court’s
docket.
Objections to the Magistrate Judge=s Proposed Findings and Recommendation were due by
August 22, 2013. Neither party has timely filed objections to the same. 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 timely objections

constitutes a waiver of de novo review and the Petitioner=s right to appeal this Court=s Order. 28
2

U.S.C. ' 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United
States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation, and ORDERS as follows:
1)

The Petitioner’s Motion Under 28 U.S.C. ' 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Document 1) shall be
RE-DESIGNATED as a Petition Under 28 U.S.C. ' 2241 for Writ of Habeas
Corpus By a Person Federal Custody;

2)

The Petitioner’s Motion to Withdraw his Section 2241 Petition (Document 379) is
GRANTED;

3)

Inasmuch as this matter has been re-designated as a Petition Under 28 U.S.C. '
2241, and the Petitioner’s Motion to Withdraw his Section 2241 Petition has been
granted, the Petitioner’s Motion in Objection or in the Alternative Motion for Stay
(Document 378) is TERMINATED AS MOOT;

4)

The Petitioner’s Petition Under 28 U.S.C. ' 2241 for Writ of Habeas Corpus By a
Person Federal Custody (Document 1) is DISMISSED; and

5)

This matter is REMOVED from the Court’s docket.

The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
VanDervort, counsel of record, and any unrepresented party.
ENTER:

3

August 27, 2013