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United States of America v. Robinson, 5:07-cr-00065. (2017)

Court: District Court, S.D. West Virginia Number: infdco20171229b73 Visitors: 7
Filed: Dec. 28, 2017
Latest Update: Dec. 28, 2017
Summary: MEMORANDUM OPINION AND ORDER THOMAS E. JOHNSTON , District Judge . Pending before the Court is Petitioner Eric Eugene Robinson's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. 2255. (ECF No. 77.) By Standing Order entered on June 14, 2016, and filed in this case on June 23, 2016, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed findings and a recommendation for disposition ("PF&R")
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MEMORANDUM OPINION AND ORDER

Pending before the Court is Petitioner Eric Eugene Robinson's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (ECF No. 77.) By Standing Order entered on June 14, 2016, and filed in this case on June 23, 2016, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed findings and a recommendation for disposition ("PF&R"). (ECF No. 76.) Magistrate Judge Eifert filed her PF&R on December 6, 2017, recommending that this Court deny Petitioner's Section 2255 Motion as untimely and dismiss this action with prejudice. (ECF No. 92.)

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). Failure to file timely objections constitutes a waiver of de novo review and the Plaintiff's right to appeal this Court's order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct a de novo review when a party "makes general and conclusory objections that do not direct the Court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

Objections to the PF&R in this case were due on December 25, 2017. (ECF No. 16.) To date, Plaintiff has failed to submit any objections in response to the PF&R, thus constituting a waiver of de novo review and Plaintiff's right to appeal this Court's order.

The Court has also considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A certificate will be granted only if there is "a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this Court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 437, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). The Court concludes that the governing standard is not satisfied in this instance. Pursuant to Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2255, Petitioner may not appeal the Court's denial of a certificate of appealability, but he may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. The Court thus DENIES a certificate of appealability.

Accordingly, the Court ADOPTS the PF&R, (ECF No. 92), DENIES the Section 2255 Motion, (ECF No. 77), and ORDERS that this action be DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.

Source:  Leagle

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