Opinion
Criminal Case No. 5:10-cr-78-JMH-CJS Criminal Case No. 5:12-cv-7202-JMH-CJS
02-20-2015
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. CHARLES EDWARD HUTSELL, Defendant-Petitioner.
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon the Report and Recommendation of Magistrate Judge Candace J. Smith. [DE 747]. Said action was referred to the magistrate for the purpose of reviewing the merit of Defendant Hutsell's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255, [DE 519], to which the United States filed a Response, stating its objections thereto. [DE 542]. Defendant filed a Reply in further support of his Motion, [DE 545].
In her Report and Recommendation, the Magistrate Judge concludes that Defendant's Plea Agreement and its waiver provision are valid and that Defendant's remaining arguments are precluded by waiver and, nonetheless, fail on the merits. Therefore, the Magistrate Judge recommends that Hutsell's motion to vacate be denied.
The Magistrate Judge's Report and Recommendation, [DE 747], was filed on January 29, 2015. It advised Defendant that objections to the Report and Recommendation were due within fourteen days or further appeal would be waived. That time has now expired, and Defendant has filed no objections.
Generally, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge." 28 U.S.C. § 636. However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985). Consequently and in the absence of any objections from Defendant Hutsell, this Court adopts the well-articulated and detailed reasoning set forth in the Report and Recommendation as its own.
Further, no certificate of appealability shall issue in this matter. "A certificate of appealability may issue .... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order for a certificate to issue, Petitioner must be able to show that reasonable jurists could find in his favor, and the "question is the debatability of the underlying federal constitutional claim, not the resolution of that debate." Miller-El v. Cockrell, 537 U.S. 322, 325 (2003). Having carefully considered the matter, this Court concludes that no certificate should issue as Hutsell cannot make a substantial showing of the denial of a constitutional right.
Accordingly, IT IS ORDERED:
(1) that the Report and Recommendation of Magistrate Judge Candace J. Smith, [DE 747] is ACCEPTED and ADOPTED;
(2) that, Defendant's request in his § 2255 Motion for sentence reduction having been recently adjudicated, [DE 745], all remaining claims in Hutsell's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255, [DE 519], are DENIED;
(3) that no certificate of appealability will issue.
This the 20th day of February, 2015.
Signed By:
Joseph M. Hood
Senior U.S. District Judge