v. McIntosh et al

Filing 79

ORDER as to Antonio Dealow McIntosh; accepting and incorporating herein the 78 Proposed Findings and Recommendation of the Magistrate Judge; denying movant's 56 MOTION to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Joseph R. Goodwin on 4/29/2009. (cc: attys and to any unrepresented party) (mkw) Modified text on 4/30/2009 (jkk).

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION ANTONIO DEALOW MCINTOSH, Movant, v. UNITED STATES OF AMERICA, Respondent. ORDER This action was referred to the Honorable Mary E. Stanley, 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(b)(1)(B). The Magistrate Judge has submitted findings of fact and has recommended that the court FIND that the defendant has failed to show that he requested his attorney to file a direct appeal on his behalf and, therefore, the court should DENY the movant's Motion to Vacate, Set Aside and Correct Sentence, pursuant to 28 U.S.C. § 2255. Neither party has filed objections to the Magistrate Judge's findings and recommendations. The failure to object to a magistrate judge's report may be deemed a waiver of appeal of the substance of the report and the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Campbell v. United States D. Ct. N.D. Cal., 501 F.2d 196, 206 (9th Cir. 1974). The court has reviewed the Magistrate Judge's findings of fact and recommendations and finds no clear error on the face of the record. Therefore, the court accepts and incorporates herein the findings and CIVIL ACTION NO. 2:08-cv-00097 (Criminal No. 2:06-cr-00181)

recommendation of the Magistrate Judge and orders judgment consistent with the findings and recommendations. The court DENIES the movant's § 2255 Motion [Docket 56] and DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: April 29, 2009

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