Daugherty v. Huttonsville Correctional Center
Filing
117
MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the 111 Proposed Findings and Recommendations by Magistrate Judge, and ORDERS that the Respondent 9;s 32 MOTION for summary Judgment be DENIED and that this matter be REFERRED back to Judge VanDervort for further proceedings respecting the merits of the Petitioner's claims. Signed by Judge Irene C. Berger on 11/20/2014. (cc: USMJ VanDervort; attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
TONY DAUGHERTY,
Petitioner,
v.
CIVIL ACTION NO. 5:12-cv-00043
HUTTONSVILLE CORRECTIONAL CENTER,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Petitioner=s December 6, 2011 Petition under 28 U.S.C. ' 2254
(Document 1), brought on the grounds that juror prejudice and ineffective assistance of counsel
marred his state court conviction and subsequent habeas proceedings.
By Standing Order (Document 14) entered on January 10, 2012, this action was referred to
the Honorable R. Clarke VanDervort, 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.
On October 30, 2014, the Magistrate Judge submitted a Proposed Findings and Recommendation
(Document 111), wherein it is recommended that this Court deny the Respondent’s Motion for
Summary Judgment (Document 32) and refer the matter back to Judge VanDervort for further
proceedings with respect to the merits of the Petitioner’s claims, including any claims he might
raise regarding ineffective assistance of counsel. Objections to the Magistrate Judge=s Proposed
Findings and Recommendation were due by November 17, 2014.
Neither party has timely filed objections to the Magistrate Judge=s Proposed Findings and
Recommendation. The Respondent filed a Response to Magistrate’s Proposed Findings and
Recommendation (Document 115), in which he indicates that he disagrees with the legal
conclusion in the PF&R, but waives the right to object.
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 the Petitioner=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).
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation, and ORDERS that the Respondent’s Motion for Summary Judgment
(Document 32) be DENIED and that this matter be REFERRED back to Judge VanDervort for
further proceedings respecting the merits of the Petitioner’s claims.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
VanDervort, counsel of record, and any unrepresented party.
ENTER:
November 20, 2014
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