Summary
Noting the Fourth Circuit's decision in U.S. v. Stewart barred this Court from applying Alleyne retroactively on collateral review
Summary of this case from Davis v. ButlerOpinion
CIVIL ACTION NO. 1:11-0024 Criminal No. 1:05-00126-01
01-17-2014
MAURICE TAFT GIBSON Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United States Magistrate Judge R. Clarke VanDervort for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C.A. § 636(b)(1)(B). Magistrate Judge VanDervort submitted to the court his Findings and Recommendation on December 5, 2013, in which he recommended that the District Court dismiss plaintiff's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, and remove this matter from the court's docket.
In accordance with the provisions of 28 U.S.C.A. § 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 of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).
The parties failed to file any objections to the Magistrate Judge's Findings and Recommendation within the requisite period. Having reviewed the Findings and Recommendation filed by Magistrate Judge VanDervort, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby DISMISSES plaintiff's motion under 28 U.S.C. § 2255, and directs the Clerk to remove this case from the court's active docket.
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." 28 U.S.C. § 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. 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 Clerk is directed to forward a copy of this Memorandum Opinion and Order to plaintiff and counsel of record.
IT IS SO ORDERED this 17th day of January, 2014.
ENTER:
___________________
David A. Faber
Senior United States District Judge