Phelix v. Warden

Filing 7

ORDER adopting in part the 6 Proposed Findings and Recommendations, the Court refers this action to the Honorable Omar J. Aboulhosn for submission of proposed findings and recommendations for the 1 Motion to Vacate, Set Aside, or Correct a Sentence no later than 9/1/2023. Signed by Judge Frank W. Volk on 5/19/2023. (cc: counsel of record; any unrepresented party) (lca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
JEFFREY PHELIX,
Petitioner,
v.

CIVIL ACTION NO. 5:20-cv-00341

WARDEN,
FCI Beckley,
Respondent.
ORDER
Pending is Petitioner Jeffrey Phelix’s Petition under 28 U.S.C. § 2241 for Writ of
Habeas Corpus, filed May 14, 2020. [Doc. 1]. This action was previously referred to the Honorable
Omar J. Aboulhosn, United States Magistrate Judge, for submission of proposed findings and
recommendations (“PF&R”). [Doc. 4]. Magistrate Judge Aboulhosn filed his PF&R on April 18,
2023. [Doc. 6]. Magistrate Judge Aboulhosn recommended that the Court construe Mr. Phelix’s
§ 2241 petition as a Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255,
direct the Clerk to open a new action in this Court and file the § 2255 motion nunc pro tunc to
May 14, 2020, and remove this matter from the Court’s docket.
The Court need not 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 recommendations
to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” (emphasis
added)). Failure to file timely objections constitutes a waiver of de novo review and the Petitioner’s

right to appeal the Court’s order. See 28 U.S.C. § 636(b)(1); see also United States v. De LeonRamirez, 925 F.3d 177, 181 (4th Cir. 2019) (Parties may not typically “appeal a magistrate judge’s
findings that were not objected to below, as § 636(b) doesn’t require de novo review absent
objection.”); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989). Further, the Court need not
conduct de novo review when a party “makes general and conclusory objections that do not direct
the Court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections in this case were due on May 5, 2023. No
objections were filed.
The Court ADOPTS the PF&R IN PART. [Doc. 6]. While it CONSTRUES Mr.
Phelix’s § 2241 petition as a Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C.
§ 2255 [Doc. 1], the Court REFERS this action to the Honorable Omar J. Aboulhosn, United
States Magistrate Judge, for submission of proposed findings of fact and recommendations for the
disposition of the § 2255 motion no later than September 1, 2023.
The Court DIRECTS the Clerk to transmit a copy of this Order to any counsel of
record and any unrepresented party.
ENTER:

2

May 19, 2023