Mark Davis v. United States of America

Filing 97

MEMORANDUM OPINION AND ORDER adopting 96 Proposed Findings and Recommendations; denying 89 MOTION to Vacate, Set Aside or Correct Sentence (2255) by Mark Davis; directing that this action is dismissed with prejudice; The Court denies a certificate of appealability. Signed by Judge Thomas E. Johnston on 5/4/2017. (cc: attys; any unrepresented party) (tmr)

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

MARK DAVIS,
Petitioner,
v.

CIVIL ACTION NO. 2:14-cv-16556
(Criminal No. 2:12-cr-00120)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner Mark Davis’ Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “Section 2255
Motion”).

(ECF No. 89.)

On January 6, 2016, this action was referred to United States

Magistrate Judge Omar J. Aboulhosn for submission of proposed findings of fact and
recommendations for disposition (“PF&R”). Magistrate Judge Aboulhosn filed his PF&R on
February 23, 2017, recommending that this Court deny Petitioner’s Section 2255 Motion and
dismiss this action with prejudice. (ECF No. 96.)
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 a party’s right to appeal this Court’s
Order. 28 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).

Objections to the PF&R in this case were due on March 13, 2017. To date, no objections
have been filed. The Court therefore ADOPTS the PF&R, DENIES the Section 2255 Motion,
and ORDERS that this action be DISMISSED WITH PREJUDICE.
The Court has also considered whether to grant a certificate of appealability. See 28
U.S.C. § 2253(c). A certificate will be granted only if there is “a substantial showing of the denial
of a constitutional right.” Id. at § 2253(c)(2). 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. 437, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). The Court concludes that the governing standard is not
satisfied in this instance. Pursuant to Rule 11(a) of the Rules Governing Proceedings Under 28
U.S.C. § 2255, Petitioner may not appeal the Court’s denial of a certificate of appealability, but he
may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.
The Court thus DENIES a certificate of appealability.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

2

May 4, 2017