Padgett v. USA, No. 5:2016cv00098 - Document 5 (N.D.W. Va. 2019)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: Affirming and Adopting in its entirety 4 Report and Recommendations on Motion to Vacate, Set Aside or Correct Sentence (2255); filed by Frederick L ee Padgett ; Denying 1 Motion to Vacate and Dismissing Civil action; Clerk to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 2/26/19. (copy to Petitioner by cert. mail)(soa) (Additional attachment(s) added on 2/26/2019: # 1 Certified Mail Return Receipt) (soa).

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Padgett v. USA Doc. 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA FREDERICK LEE PADGETT, Petitioner, Civil Action No. 5:16CV98 (Criminal Action No. 5:98CR11—0l) (STAMP) v. UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE I. The petitioner, Assistant Leary, Action No. ECF No. Background Frederick Lee Padgett, Federal 5:16—CV—98, 150)’ under 28 Public ECF No. U.S.C. 1; by counsel Brendan S. Defender, filed a motion Criminal Action No. 5:98—CR—il, § 2255 moving this Court petitioner’s sentence in the above—style action. (Civil to vacate This Court then entered an order directing the government to respond. ECF No. 154. After the government’s delay in filing its response, the magistrate judge entered an order to show cause. then filed a ECF No. in opposition 160. to the to United The government petitioner’s motion. 163. This Judge response ECF No. civil Robert W. action was Trumble referred under Local Rule of States Magistrate Prisoner Litigation ‘Unless dual ECF numbers are cited to both the civil and criminal action, all citations to ECF numbers in this memorandum opinion and order refer to Criminal Action No. 5:98—CR—il. Dockets.Justia.com 2. Procedure Magistrate recommendation Action No. untimely. Court motion jçj at 1, report the (Civil Action No. 5:98—CR-il, petitioner’s ECF and issued 5:16—CV—98, No. 164) and a report ECF No. Criminal 4; recommending the 5. The petitioner did not file objections to the For the report with that denied adopts dismissed and be and recommendation. affirms Trumble Judge following and prejudice reasons, recommendation in as this its entirety. II. Applicable Law Pursuant to 28 U.S.C. § 636(b) (1) (C), a de novo review of any portion of this Court must conduct the magistrate recommendation to which objection is timely made. where no objections were made, such findings As to findings and recommendations will be upheld unless they are “clearly erroneous law.” file 28 any magistrate U.S.C. § 636(b) (1) (A). objections judge’s to the findings judge’s or contrary to Because the petitioner did not report and and recommendation, recommendations will unless they are “clearly erroneous or contrary to law.” be the upheld 28 U.S.C. § 636(b) (1) (A). III. This Court, after Discussion review, finds no clear error in the determinations of the magistrate judge and adopts and affirms the report and recommendation (ECF No. 2 4/ECF No. 164) in its entirety. In his report and recommendation, the magistrate judge addressed the government’s argument that the petition is untimely. As the magistrate the because residual Supreme Court of clause correctly judge the unconstitutionally vague, not yet yet mandatory that recognized by finds because the instant addressed the of § case, whether the Guidelines 2255 (f) (3) magistrate petitioner’s Supreme Therefore, the is the right on which petitioner relies has Court that in Sentencing for purposes determined untimely. not “recognized” been This 4-5. has noted, Court, right his motion . judge has at correctly not under Id. yet § been 2255 is the magistrate judge properly concluded that petitioner’s motion must be dismissed. Finally, this Court finds that the advised by the magistrate judge that the report and recommendation waiver of appellate rights. object, he has waived his matter. See Wright in petitioner was properly failure to timely object to this action would result in a Because the petitioner has failed to right to seek appellate review of this v. Collins, 766 this Court finds F.2d 841, 844—45 (4th Cir. in the upholds his 1985) Upon review, determinations of the magistrate recommendation. 3 no judge clear and error thus IV. Conclusion For the reasons set forth above, of the magistrate ADOPTED in its judge (ECF No. entirety. 4/ECF No. 164) is AFFIRMED and The petitioner’s motion habeas corpus pursuant to 28 U.S.C. is DENIED. the report and recommendation § 2255 (ECF No. for a writ 1/ECF No. of 150) It is further ORDERED that this case be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. IT IS SO ORDERED. The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to the petitioner by certified mail to counsel of record herein. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. DATED: February 26, 2019 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 4

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