Opinion
Civil Action No. 2:06 CV 24.
May 27, 2008
ORDER
It will be remembered that the above-styled civil action was instituted on February 17, 2006, when pro se Petitioner James Allen Morris, an inmate at the Gilmer Federal Correctional Institution, filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.
It will further be remembered that the above-styled civil action was referred to United States Magistrate Judge John S. Kaull for initial review and report and recommendation, pursuant to Rule 83.13 of the Local Rules of Prisoner Litigation Procedure.
By Order entered May 10, 2006, Magistrate Judge Kaull indicated that he had conducted a preliminary review of the file and had determined that summary dismissal was not appropriate at that time. Accordingly, Magistrate Judge Kaull's May 10, 2006, Order directed the Respondent to show cause why the Petitioner's § 2254 Petition should not be granted.
The Respondent's Response To Petitioner's Motion Under 28 U.S.C. § 2254 was filed on August 9, 2006.
On October 15, 2007, United States Magistrate Judge John S. Kaull filed an Opinion/Report And Recommendation in the above-styled civil action, wherein he recommended that the Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody be denied and dismissed with prejudice.
Magistrate Judge Kaull's Opinion/Report And Recommendation expressly advised the parties, in accordance with 28 U.S.C. § 636(b)(1), to file with the Clerk of Court any written objections to said Opinion/Report And Recommendation within ten days after being served with a copy of the same.
The record herein reflects that on October 26, 2007, the Petitioner filed his Objections To Magistrate Report And Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of Magistrate Judge Kaull'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 Magistrate Judge Kaull 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 Petitioner's right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1980); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). As previously noted, the Petitioner timely filed his Objections To Magistrate Report And Recommendation on October 26, 2007. Accordingly, this Court has conducted a de novo review only as to the portions of the Opinion/Report And Recommendation to which the Petitioner objected. The remaining portions of the Opinion/Report And Recommendation to which the Petitioner did not object were reviewed for clear error.
Upon examination of Magistrate Judge Kaull's Opinion/Report And Recommendation, it appears to the Court that the issues of whether this Court lacks subject matter jurisdiction to consider the Petitioner's § 2254 Petition in light of the fact that said Petition challenges a sentence that had fully expired at the time said Petition was filed and whether the Petitioner meets any of the exceptions to the rule that he is not entitled to collaterally attack a prior state conviction which was used to enhance his current Federal sentence were thoroughly considered by Magistrate Judge Kaull in his Opinion/Report And Recommendation. Furthermore, upon consideration of the Petitioner's objections to said Opinion/Report And Recommendation, it appears to the Court that the Petitioner has not raised any issues that were not thoroughly considered by Magistrate Judge Kaull in said Opinion/Report And Recommendation. Moreover, the Court is of the opinion that Magistrate Judge Kaull's Opinion/Report And Recommendation accurately reflects the law applicable to the facts and circumstances before the Court in the above-styled civil action. Therefore, it is
ORDERED that the Opinion/Report And Recommendation entered by United States Magistrate Judge John S. Kaull on October 15, 2007 (Docket No. 18), be, and the same hereby is, ACCEPTED in whole and that this civil action be disposed of in accordance with the recommendation of the Magistrate Judge. Accordingly, it is
ORDERED that the Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Docket No. 1), be, and the same is hereby, DENIED and DISMISSED, with prejudice.
It is further
ORDERED that the Clerk of Court shall enter judgment for the Respondent. It is further
ORDERED that, should the Petitioner desire to appeal the decision of this Court, written notice of appeal must be received by the Clerk of this Court within thirty (30) days from the date of the entry of the Judgment Order, pursuant to Rule 4 of the Federal Rules of Appellate Procedure. The $5.00 filing fee for the notice of appeal and the $450.00 docketing fee should also be submitted with the notice of appeal. In the alternative, at the time the notice of appeal is submitted, the Petitioner may, in accordance with the provisions of Rule 24(a) of the Federal Rules of Appellate Procedure, seek leave to proceed in forma pauperis from the United States Court Of Appeals For The Fourth Circuit.