Linn v. USA, No. 3:2017cv00029 - Document 5 (N.D.W. Va. 2018)

Court Description: MEMORANDUM OPINION AND ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 1/23/2018. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 1/23/2018: # 1 Certified Mail Return Receipt) (tlg).

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Linn v. USA Doc. 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG CHRISTOPHER LEE LINN, Petitioner, v. CIVIL ACTION NO.: 3:17-CV-29 CRIMINAL ACTION NO.: 3:16-CR-4 (GROH) UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION On this day, the above-styled matter came before the Court for consideration of the Amended Report and Recommendation of United States Magistrate Judge James E. Seibert. ECF No. 61 in 3:16-CR-61. Pursuant to Rule 2 of the Local Rules of Prisoner Litigation Procedure, this action was referred to Magistrate Judge Seibert for submission of a proposed Report and Recommendation. Magistrate Judge Seibert filed his Amended Report and Recommendation on December 12, 2017, whereby he recommended that the Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence be denied and dismissed as to Ground 1 and Ground 2. He further recommended that an evidentiary hearing be held solely on the issue raised in Ground 3. 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 Dockets.Justia.com 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 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. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert’s Report and Recommendation were due within fourteen (14) days after being served with a copy pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. The Petitioner accepted service on December 18, 2017. ECF No. 64. Therefore, objections were due on or before January 5, 2018. To date, no objections have been filed. Accordingly, the Court will review Magistrate Judge Seibert’s Report and Recommendation for clear error. Upon careful review and finding no clear error, the Court ORDERS that Magistrate Judge Seibert’s Amended Report and Recommendation [ECF No. 61 in 3:16-CR-4] is hereby ADOPTED for the reasons more fully stated therein. The Petitioner’s § 2255 Petition [ECF No. 43 in 3:16-CR-4] is DENIED and DISMISSED WITH PREJUDICE on Grounds One and Two. The Court reserves ruling solely on the issue of whether the Petitioner instructed his counsel to file an appeal, the issue raised in Ground Three of the petition. The Court further ORDERS that Magistrate Judge Seibert’s Report and Recommendation [ECF No. 60 in 3:16-CR-4] be TERMINATED AS MOOT. As a final matter, upon an independent review of the record, this Court hereby DENIES the Petitioner a Certificate of Appealability, finding that he has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 2 The Clerk is DIRECTED to transmit copies of this Order to all counsel of record herein and to mail a copy to the pro se Petitioner by certified mail, return receipt requested, to his last known address as shown on the docket sheet. DATED: January 23, 2018 3

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