Shaw v. United States of America

Filing 146

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 144 Proposed Findings and Recommendation, DENIES Movant' 129 Section 2255 Motion, DISMISSES this case and DIRECTS the Clerk to remove this action from the Court's docket. The Court DENIES a certificate of appealability. Signed by Judge Thomas E. Johnston on 7/22/2013. (cc: attys; any unrepresented party) (msa)

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

JOBARD MARK SHAW,
Movant,
v.

CIVIL ACTION NO. 5:10-cv-00871
(Criminal No. 5:07-cr-00086)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Movant Jobard Mark Shaw, acting pro se, (“Petitioner”) filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [ECF 129].

By Standing Order

entered August 1, 2006, and filed in this case on June 28, 2010, this case was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of proposed findings and a
recommendation (“PF&R”). On June 17, 2013, Magistrate Judge VanDervort issued a PF&R
recommending that the Court deny Petitioner’s motions (ECF 144).
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). In addition,
failure to file timely objections constitutes a waiver of de novo review and Movant’s right to
appeal this Court’s Order. Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United
States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge
VanDervort’s PF&R were due on July 5, 2013. To date, no objections have been filed.

Accordingly, the Court ADOPTS the PF&R (Docket 144), DENIES Movant’s § 2255
motion [Docket 129], DISMISSES this case, and DIRECTS the Clerk to remove this action
from the Court’s docket.
The Court has also 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.” 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, 683–83 (4th Cir. 2001). The Court concludes that the
governing standard is not satisfied in this instance. Pursuant to Rule 11(a), Movant 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.

Accordingly, the Court

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

July 22, 2013