Opinion
Civil Action No. 3:16-CV-44 Crim. Action No. 3:09-CR-87-6
06-20-2016
JAMELL MASON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
(BAILEY)
ORDER ADOPTING REPORT AND RECOMMENDATION
Presently pending before this Court is petitioner Jamell Mason's pro se Motion to Vacate [Crim. Doc. 611; Civ. Doc. 1], filed April 13, 2016, petitioner's Motion to Appoint Counsel [Crim. Doc. 631; Civ. Doc. 12], filed on May 9, 2016, and Magistrate Judge Robert W. Trumble's Report and Recommendation ("R&R") [Crim. Doc. 639; Civ. Doc. 13], filed on May 10, 2016. In Magistrate Judge Trumble's R&R, he recommends that this Court deny and dismiss petitioner's Motion to Vacate as second or successive, and deny as moot petitioner's Motion to Appoint Counsel [Crim. Doc. 639; Civ. Doc. 13].
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 Trumble'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. The petitioner timely filed his objections [Crim. Doc. 648; Civ. Doc. 15] on May 26, 2016.
However, upon careful review of the above, this Court finds that the current § 2255 petition is a prohibited second or successive motion and that petitioner did not obtain authorization from the Fourth Circuit to file a successive § 2255 motion. Accordingly, pursuant to 28 U.S.C. § 2244 and 28 U.S.C. § 2255, this Court is without authority to hear petitioner's current federal habeas petition. See United States v . Winestock , 340 F.3d 200, 207 (4th Cir. 2003).
In rendering this decision, this Court is cognizant of the precedent set forth in In re Hubbard , — F.3d —, No. 15-276, 2016 WL 3181417 (4th Cir., June 8, 2016), which may provide the necessary precedential framework for petitioner to seek a second or successive petition. --------
As such, the R&R in this matter [Crim. Doc. 639; Civ. Doc. 13] is hereby ORDERED ADOPTED, and petitioner's Objections [Crim. Doc. 648; Civ. Doc. 15] are OVERRULED. Petitioner's petition for relief under 28 U.S.C. § 2255 [Crim. Doc. 611; Civ. Doc. 1] is hereby DENIED and DISMISSED as an unauthorized second or successive motion, and the Motion to Appoint Counsel [Crim. Doc. 631; Civ. Doc. 12] is DENIED AS MOOT.
As a final matter, upon an independent review of the record, this Court hereby GRANTS a certificate of appealability, finding that Mr. Mason has made "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.
DATED: June 20, 2016.
/s/ _________
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE