Opinion
CIVIL ACTION NO. 2:15-CV-2 CRIM. ACTION NO. 2:13-CR-27-1
01-25-2016
TIMOTHY JUSTON WIMER, Petitioner-Defendant, v. UNITED STATES OF AMERICA, Respondent-Plaintiff.
(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 [Civ. Doc. 8 / Crim. Doc. 72]. 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 January 6, 2016, wherein he recommends this Court grant the 28 U.S.C. § 2255 petition insofar as counsel failed to file a Notice of Appeal on his behalf.
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). To date, no party has objected. Accordingly, this Court will review the R&R for clear error.
Therefore, upon careful review of the above, it is the opinion of this Court that:
1. The Magistrate Judge's January 6, 2016, Report and Recommendation [Civ. Doc. 8 / Crim. Doc. 72] is ADOPTED;
2. The Magistrate Judge's July 20, 2015, Report and Recommendation [Civil Doc. 6 / Crim. Doc. 63] is ADOPTED;
3. The original Judgment and Commitment Order [Crim. Docs. 35 & 36] is VACATED and petitioner shall be RESENTENCED for the sole purpose of resetting the time to file a Notice of Appeal;
4. Petitioner's § 2255 [Civ. Doc. 1 / Crim. Doc. 47] is hereby GRANTED IN PART as to petitioner's claim of ineffective assistance of counsel with regard to counsel's failure to file a Notice of Appeal on behalf of petitioner;
5. Petitioner's § 2255 [Civ. Doc. 1 / Crim. Doc. 47] is hereby DENIED IN PART as to the remainder of petitioner's claims of ineffective assistance of counsel; and
6. A separate order setting the date and time of petitioner's resentencing will
follow.
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: January 25, 2016.
/s/_________
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE