Opinion
Civil Action No. 1:11-CV-185 Criminal Action No. 1:09-CR-21
07-03-2013
CHERYL L. GOFF, 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 the United States Magistrate Judge James E. Seibert [Civ. Doc. 12; Cr. Doc. 179]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Seibert for submission of a proposed report and recommendation ("R&R"). Magistrate Judge Seibert filed his R&R on April 19, 2012 [Civ. Doc. 12; Cr. Doc. 179]. In that filing, the magistrate judge recommended that this Court deny and dismiss the petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("§ 2255 Motion") because the "Petitioner's claims are without merit" [Civ. Doc. 12; Cr. Doc. 179].
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 Rule 72(b) of the Federal Rules of Civil Procedure. Service of the R&R was accepted by the Petitioner on April 24, 2012 [Civ. Doc. 13; Cr. Doc. 180]. No timely objections were filed.
The instant case features a unique set of timing-based procedural oddities. The petitioner filed an initial § 2255 Motion on November 21, 2011 [Civ. Doc. 1, Cr. Doc. 140], and the Court sent the petitioner a Notice of Deficient Pleading on the same day [Civ. Doc. 4, Cr. Doc. 144]. The petitioner filed a Court-Approved § 2255 Motion on December 16, 2011 [Civ. Doc. 6, Cr. Doc. 151]. Magistrate Judge Seibert then issued an Order directing the respondent to answer the petitioner on January 25, 2012 [Civ. Doc. 7, Cr. Doc. 159].
The respondent filed its requisite answer on February 21, 2012, in the form of a Response in Opposition to the Petitioner's § 2255 Motion [Civ. Doc. 9, Cr. Doc. 169]. On March 21, 2012, Magistrate Judge Seibert granted the petitioner a deadline extension [Civ. Doc. 10, Cr. Doc. 177] to allow her to reply to the Government's Response in Opposition, which the petitioner accepted on March 26, 2012 [Civ. Doc. 13, Cr. Doc. 178]. It is of note that the petitioner filed a Motion Request for Leave to Respond to Any Argument of the Government on November 21, 2011 [Civ. Doc. 2, Cr. Doc 142], which Magistrate Judge Seibert considered when granting the extension and setting an April 18, 2012 deadline.
Despite the month-long extension, the petitioner missed the April 18, 2012 deadline and Magistrate Judge Seibert wrote and filed his R&R on April 19, 2012 [Civ. Doc. 12, Cr. Doc. 179]. The Petitioner's Reply to the United State's Opposition to Petitioner's Motion to Vacate was finally sent on April 22, 2012 and was received by the Court on April 30, 2012 [Civ. Doc. 14, Cr. Doc. 181]. This Court has carefully examined and reviewed the Petitioner's Reply [Civ. Doc. 14, Cr. Doc. 181], and has used a liberal reading of that document to determine whether an objection to Magistrate Judge Seibert's R&R was contained therein. Yet even under this liberal construction, the petitioner's Reply cannot be construed as an objection to the R&R filed by Magistriate Judge Seibert. Because of its timing and given as it merely reiterates the petitioner's arguments in her § 2255 Motion [Civ. Doc. 9, Cr. Doc. 169], it does not address any of the conclusions or recommendations reached within the R&R. The petitioner received Magistrate Judge Seibert's R&R on April 24, 2012 [Civ. Doc. 13, Cr. Doc. 180], which was two days after she submitted her Reply to the Government's Response in Opposition to the Petitioner's § 2255 Motion on April 22, 2012 [Civ. Doc. 9, Cr. Doc. 169]. Accordingly, this Court has reviewed the R&R for clear error.
Upon careful review of the report and recommendation, it is the opinion of this Court that Magistrate Judge Seibert's Report and Recommendation [Civ. Doc. 12, Cr. Doc. 179] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated by the magistrate judge. As such, this Court hereby DENIES and DISMISSES without prejudice the petitioner's § 2255 petition [Civ. Doc. 1, Cr. Doc. 140; Civ. Doc. 6, Cr. Doc. 151]. Therefore, this matter is hereby ORDERED STRICKEN from the active docket of this Court. The Clerk is directed to enter a separate judgment in favor of the respondent.
As a final matter, upon an independent review of the record, this Court hereby DENIES the petitioner a certificate of appealability, finding that he had failed to make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
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.
____________________
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE