Cheese v. United States of America

Filing 448

MEMORANDUM OPINION AND ORDER: The Court DENIES a certificate of appealability; the Court ADOPTS the 408 Proposed Findings and Recommendation by the Magistrate Judge, DENIES movant's 401 Motion under 28 U.S.C. Section 2255 to Vacate, Set As ide or Correct Sentence by a person in federal custody, and DIRECTS the Clerk to remove this case from the court's docket. Signed by Judge David A. Faber on 8/12/2015. (cc: movant, pro se) (slr) Modified on 8/12/2015 to update document number (slr).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
TROY LAMONT CHEESE,
Movant,
v.

Civil Action No: 5:13-0108
Criminal Action No: 5:97-00155

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court is movant’s motion to vacate, set
aside, or correct a sentence pursuant to 28 U.S.C. § 2255.
(Doc. No. 401).

By Standing Order, this matter was referred to

United States Magistrate Judge R. Clarke VanDervort for
submission of findings and recommendations regarding
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).
405).

(Doc. No.

Magistrate Judge VanDervort submitted to the court his

Proposed Findings and Recommendation, in which he recommended
that the district court deny movant’s motion and remove this
matter from the court’s docket.

(Doc. No. 408).

In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
VanDervort’s Findings and Recommendation.

The failure to file

such objections constitutes a waiver of the right to a de novo
1

review by this court.

Snyder v. Ridenour, 889 F.2d 1363 (4th

Cir. 1989).
Movant failed to file any objections to the Magistrate
Judge’s Findings and Recommendation within the seventeen-day
period.

Having reviewed the Findings and Recommendation filed

by Magistrate Judge VanDervort, the court adopts the findings
and recommendation contained therein.
Additionally, the court has 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.”
2253(c)(2).

Id. §

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. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683–84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly the

court DENIES a certificate of appealability.
The court hereby ADOPTS the factual and legal analysis
contained within the PF&R, DENIES movant’s motion under 28
U.S.C. § 2255 to vacate, set aside, or correct a sentence by a

2

person in federal custody, (Doc. No. 401), and DIRECTS the Clerk
to remove this case from the court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to movant, pro se.
It is SO ORDERED this 12th day of August, 2015.
ENTER:

David A. Faber
Senior United States District Judge

3