Stewart v. U.S.

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

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

Date published: Sep 17, 2009

CIVIL ACTION NO. 3:08-CV-170, CRIMINAL ACTION NO. 3:07-CR-16 (BAILEY) (N.D.W. Va. Sep. 17, 2009)

Opinion

CIVIL ACTION NO. 3:08-CV-170, CRIMINAL ACTION NO. 3:07-CR-16 (BAILEY).

September 17, 2009

ORDER ADOPTING REPORT AND RECOMMENDATION

JOHN BAILEY, District Judge

On this day, the above-styled matter came before the Court for consideration of the Opinion/Report and Recommendation of United States Magistrate Judge David J. Joel. By Standing Order, this action was referred to Magistrate Judge Joel for submission of a proposed report and a recommendation ("R R"). Magistrate Judge Joel filed his R R on August 26, 2009 [Crim. Doc. 54/Civ. Doc. 5]. In that filing, the magistrate judge recommended that this Court dismiss this petition under § 2255 [Crim. Doc. 46/Civ. Doc. 1].

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 Joel's R R were due within ten (10) 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 27, 2009. To date, no objections have been filed. Accordingly, this Court will review the report and recommendation for clear error.

Upon careful review of the report and recommendation, it is the opinion of this Court that the magistrate judge's Report and Recommendation [Crim. Doc. 54/Civ. Doc. 5] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. As such, this Court hereby DENIES and DISMISSES the petitioner's § 2255 petition [Crim. Doc. 46/Civ. Doc. 1]. Therefore, this matter is hereby ORDERED STRICKEN 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.

Exhibit