Myers v. United States of America

Filing 113

MEMORANDUM OPINION AND ORDER as to Eric Thomas Myers adopting the 110 Proposed Findings and Recommendation by Magistrate Judge; denying as moot Movant's 90 Motion to Vacate, Set Aside or Correct Sentence (2255); and dismissing this action from the court's docket. The court denies a certificate of appealability. Signed by Senior Judge David A. Faber on 6/14/2021. (cc: counsel of record; any unrepresented parties) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ERIC THOMAS MYERS,
Movant,
v.

CIVIL ACTION NO. 1:18-00979
CRIMINAL NO. 1:16-00223

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

Magistrate Judge Tinsley submitted to

the court his Proposed Findings and Recommendation (“PF&R”) on
November 9, 2020, in which he recommended that the court deny
movant’s 1 § 2255 motion as moot, given movant’s release from
federal custody on November 8, 2019, and the lack of a further
term of supervised release ensuing thereafter.

(See ECF No.

112.)
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days and three mailing days
in which to file objections to the PF&R.

The failure of any

The PF&R uses the terms “Movant,” “Defendant,” and “Petitioner”
interchangeably to identify Mr. Myers.
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party to file such objections within the time allowed
constitutes a waiver of such party's right to a de novo review
by this court.

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

1989).
Neither party filed any objections to the PF&R within the
required time period.

Accordingly, the court adopts the PF&R as

follows:
1. Movant’s Motion to Vacate, Set Aside, or Correct
Sentence (ECF No. 90) is DENIED as moot; and
2. This action is DISMISSED from the court’s 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.
court DENIES a certificate of appealability.
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Accordingly, the

The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record and any unrepresented
parties.
IT IS SO ORDERED this 14th day of June, 2021.
ENTER:
David A. Faber
Senior United States District Judge

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