Allen v. United States of America
MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 285 Proposed Findings and Recommendation, GRANTS Movant's 284 MOTION to withdraw his Section 2255 motion, DISMISSES Movant's 263 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 11/6/2014. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
KEITH RAMON ALLEN
CIVIL ACTION NO. 5:12-cv-00189
(Criminal No. 5:03-cr-00032-2)
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Movant Keith Ramon Allen, acting pro se, filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 [ECF 263].
By Standing Order entered September 2,
2010, and filed in this case on January 26, 2012, this case was referred to United States Magistrate
Judge R. Clarke VanDervort for submission of proposed findings and a recommendation
On September 29, 2014, Magistrate Judge VanDervort issued a PF&R
recommending that the Court deny Movant’s motion (ECF 285).
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 October 17, 2014. To date, no objections have been filed.
Accordingly, the Court ADOPTS the PF&R (ECF 285), GRANTS Movant’s motion to
withdraw [ECF 284] his Section 2255 motion, DISMISSES Movant’s § 2255 motion [ECF 263],
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
November 6, 2014
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