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Case 1:12-cv-00096-JPB-JES Document 17 Filed 07/10/13 Page 1 of 3 PageID #: 105

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

EUNICE HUSBAND,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

CIVIL ACTION NO. 1:12-cv-96
CRIMINAL ACTION NO. 1:08-cr-16
(Judge Bailey)

ORDER ADOPTING REPORT AND RECOMMENDATION

On this day, the above-styled matter came before the Court for consideration of the

Report and Recommendation of United States Magistrate Judge James E. Seibert. By

Local Rule, 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 August 1, 2012 [Crim. Doc. 152; Civ. Doc. 11]. In that filing, the magistrate judge

recommended that this Court deny the petitioner’s Motion to Vacate under 28 U.S.C.

§ 2255 [Crim. Doc. 142; Civ. Doc. 1] as untimely.

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

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Case 1:12-cv-00096-JPB-JES Document 17 Filed 07/10/13 Page 2 of 3 PageID #: 106

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).

The docket sheet reflects that service was accepted on August 6, 2012 [Crim. Doc. 153;

Civ. Doc. 12]. To date, no objections have been filed.

This Court acknowledges the petitioner’s additional filings, the Motion to

Acknowledge and Consider and Order Respondent to Cause a Copy of Motion for Relief

Under Section 2255 to be Served Upon Petitioner [Crim. Doc. 154; Civ. Doc. 13] and the

Request for Government’s Response Brief to Petitioner’s 28 U.S.C. § 2255 Motion [Crim.

Doc. 157; Civ. Doc. 14]. These filings request the Government’s response to the

petitioner’s Section 2255 Motion; however, the Government’s response, which addresses

the merits of the petitioner’s § 2255 petition, is of no consequence to this case. Further,

neither of the petitioner’s filings, filed after receipt of and noting the R&R, addresses the

timeliness issue that is discussed in the R&R. The petitioner was clearly aware of the need

to file any objections and the consequences of failing to do so. As such, this Court will

review the R&R for clear error.

Upon careful review of the report and recommendation, it is the opinion of this Court

that the magistrate judge’s R&R [Crim. Doc. 152; Civ. Doc. 11] should be, and is, hereby

ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report.

Accordingly, the petitioner’s Motion to Vacate under 28 U.S.C. § 2255 [Crim. Doc. 142;

Civ. Doc. 1] is DENIED and DISMISSED WITH PREJUDICE. Further, the Motion to

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Case 1:12-cv-00096-JPB-JES Document 17 Filed 07/10/13 Page 3 of 3 PageID #: 107

Acknowledge and Consider and Order Respondent to Cause a Copy of Motion for Relief

Under Section 2255 to be Served Upon Petitioner [Crim. Doc. 154; Civ. Doc. 13] is hereby

DENIED AS MOOT. Therefore, this case is hereby ORDERED STRICKEN from the active

docket of this Court. The Clerk is directed to enter a judgment in favor of the respondent.

As a final matter, upon an independent review of the record, this Court hereby

DENIES the petitioner a certificate of appealability, finding that he had failed to make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to any counsel or record and

to mail a copy to the pro se petitioner.

DATED: July 9, 2013

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