Opinion
CIVIL ACTION NO. 2:16-CV-16
08-22-2016
ROGER A. MCKINNEY, Petitioner, v. PATRICK MIRANDY, Warden, 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 [Doc. 24]. 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 July 28, 2016, wherein he recommends that this Court grant the respondent's Motion to Dismiss for Failure to Exhaust State Remedies [Doc. 17], deny and dismiss the petitioner's Petition for Writ of Habeas Corpus [Doc. 1] without prejudice, and deny as moot petitioner's Motion to Appoint Counsel [Doc. 10].
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 1, 2016 [Doc. 25]. No objections have been filed to date. Accordingly, this Court will review the R&R for clear error.
Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 24] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Accordingly, the respondent's Motion to Dismiss for Failure to Exhaust State Remedies [Doc. 17] is hereby GRANTED. As such, this Court ORDERS that the petitioner's Petition for Writ of Habeas Corpus [Doc. 1] is DENIED and DISMISSED WITH PREJUDICE. As an additional matter, this Court orders that petitioner's Motion to Appoint Counsel [Doc. 10] is 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 22, 2016.
/s/ _________
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE