Billings v. U.S.

Full title: ANTHONY BILLINGS, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, N.D. West Virginia

Date published: Mar 25, 2008

CIVIL NO.: 1:08CV47, CRIMINAL NO.: 1:04CR27-3 (N.D.W. Va. Mar. 25, 2008)

Opinion

CIVIL NO.: 1:08CV47, CRIMINAL NO.: 1:04CR27-3.

March 25, 2008

ORDER ADOPTING REPORT AND RECOMMENDATION

IRENE KEELEY, District Judge

On January 28, 2008, the pro se petitioner Anthony Billings ("Billings") filed a habeas corpus motion pursuant to 28 U.S.C. § 2255 in the Northern District of West Virginia. Billings' motion was referred to United States Magistrate Judge John S. Kaull for an initial review and report and recommendation ("R R") pursuant to LR PL P 83.01 and Standing Order No. 5. Upon preliminary review, Magistrate Judge Kaull issued an R R on March 4, 2008, recommending that this Court dismiss the case with prejudice because the motion is untimely. Billings filed objections on March 24, 2008.

This Court conducts a de novo review of any portions of the R R to which a party objects, but may adopt any portion of the R R to which no party objects without substantive review.¹

1 The failure to object to a portion of the Report and Recommendation not only waives the appellate rights on that issue, but also relieves the Court of any obligation to conduct ade novo review of the issue. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).

In his objections, Billings alleges that he was unaware of the one-year statute of limitations on § 2255 motions. He argues, therefore, that he should be allowed to file his motion out of time. He also argues that this Court miscalculated his relevant conduct during his sentencing.

Upon de novo review, the Court finds that the Magistrate Judge properly applied the statute of limitations from 28 U.S.C. § 2255 and properly determined that Billings' motion was untimely. The Magistrate Judge also properly applied the rule of Harris v. Hutchinson, 209 F.3d 325, 330 (4^th Cir. 2000), when he determined that equitable tolling of the statute of limitations does not apply in this case.

Consequently, the Court DENIES Billings' § 2255 motion (civil dkt. no. 1 criminal dkt. no. 199), ADOPTS the R R in its entirety (civil dkt. no. 9 criminal dkt. no. 218) and DISMISSES this case WITH PREJUDICE.

It is SO ORDERED.

The Clerk is directed to mail a copy of this Order by certified mail, return receipt requested, to the pro se petitioner and to transmit copies of this Order to all counsel of record and all appropriate agencies.