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)

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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

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