Burgess v. Ballard

Filing 59

ORDER The 58 Proposed Findings and Recommendation is ADOPTED; the Respondent's 52 Motion for Summary Judgment is GRANTED; and the Petitioner's 2 Petition for Writ of Habeas Corpus is DENIED; the Clerk is directed to remove this matter from the Court's docket. Signed by Judge Thomas E. Johnston on 6/3/2021. (cc: counsel of record; any unrepresented party) (kew)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION SCOTT B. BURGESS, Petitioner, v. CIVIL ACTION NO. 2:16-cv-10949 RUSSELL MASTON, Respondent. ORDER Before the Court are Petitioner’s pro se Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (ECF No. 2), and Respondent’s Motion for Summary Judgment, (ECF No. 52). By standing order entered on January 4, 2016, and filed in this case on November 17, 2016, (ECF No. 7), this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed findings and a recommendation for disposition (“PF&R”). Magistrate Judge Eifert entered her PF&R on March 9, 2021, recommending this Court grant Respondent’s Motion for Summary Judgment, deny Petitioner’s Petition for Writ of Habeas Corpus, and dismiss and remove this case from the docket of the court. (ECF No. 58.) This Court is not required to review, de novo or under any other standard, factual or legal conclusions contained within the PF&R to which no objections were addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review and Plaintiff’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). In addition, 1 this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections to the PF&R in this case were due on March 26, 2021. To date, no objections have been filed. Accordingly, the Court ADOPTS the PF&R, (ECF No. 58); GRANTS Respondent’s Motion for Summary Judgment, (ECF No. 52); and DENIES Petitioner’s Petition for Writ of Habeas Corpus, (ECF No. 2). The Court further DIRECTS the Clerk to remove this matter from the Court’s docket. 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 June 3, 2021

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