Opinion
CRIMINAL ACTION NO. 2:90-CR-78 CIVIL ACTION NO. 2:15-CV-45
08-29-2016
ELLOWOOD EUGENE BENNETT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
(BAILEY)
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert [Crim. Doc. 360; Civ. Doc. 7]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Seibert for submission of a proposed report and a recommendation ("R & R"). Magistrate Judge Seibert filed his R&R on August 1, 2016, wherein he recommends this Court deny and dismiss the petitioner's petition for writ of habeas corpus without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, 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 the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); 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 Seibert's R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service was accepted on August 9, 2016 [Crim. Doc. 361; Civ. Doc. 7]. No objections have been filed to date. Accordingly, this Court will review the R&R for clear error.
This Court notes that petitioner did file a Motion/ Application for Leave to File Second or Successive Motion to Vacate [Crim. Doc. 362] on August 26, 2016. However, upon careful review of the same, this Court cannot possibly construe that filing as objections to Magistrate Judge Seibert's R&R. --------
Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Crim. Doc. 360; Civ. Doc. 7] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Accordingly, this Court ORDERS that the petitioner's Motion to Vacate, Set Aside, or Correct Sentence [Crim. Doc. 349; Civ. Doc. 1] be DENIED and DISMISSED WITHOUT PREJUDICE, and petitioner's Motion for Summary Judgment [Crim. Doc. 359] be DENIED AS MOOT. This Court further DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case from the active docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and to mail a copy to the pro se petitioner.
DATED: August 29, 2016.
/s/ _________
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE