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Case 1:12-cv-00163-IMK-JSK Document 13 Filed 07/30/13 Page 1 of 3 PageID #: 55

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

SANTANA WYGANT,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

//

CIVIL ACTION NO. 1:12CV163

(Judge Keeley)

ORDER ADOPTING REPORT AND RECOMMENDATION

On October 22, 2012, the pro se petitioner, Santana Wygant
(“Wygant”), filed a petition for habeas corpus pursuant to 28
U.S.C. § 2255. (Dkt. No. 1). The Court referred this matter to
United States Magistrate Judge John S. Kaull for initial screening
and a report and recommendation in accordance with LR PL P 2. Upon
a preliminary review of the petition, Magistrate Judge Kaull found
that it was time-barred on its face, having been filed more than
two years after the one-year statute of limitations had expired.
See 28 U.S.C. § 2255(f)(1). Accordingly, the magistrate judge
issued a Hill v. Braxton1 notice to Wygant on November 15, 2012,
advising him that his case would be dismissed unless he
demonstrated within twenty-one (21) days that his motion was
timely. (Dkt. No. 6). Wygant filed a response on November 30, 2012,
arguing generally that he should be allowed to proceed because his
counsel was ineffective at his sentencing. (Dkt. No. 8).

1 277 F.3d 701, 707 (4th Cir. 2002).

Case 1:12-cv-00163-IMK-JSK Document 13 Filed 07/30/13 Page 2 of 3 PageID #: 56

WYGANT v. USA

1:12CV163

ORDER ADOPTING REPORT AND RECOMMENDATION

On May 21, 2013, Magistrate Judge Kaull issued an Opinion and
Report and Recommendation (“R&R”), in which he recommended that
Wygant’s petition be denied as untimely. (Dkt. No. 9). He
determined that Wygant had failed to provide any grounds for
equitable tolling of the limitations period or, indeed, any
explanation whatsoever for his delay. Wygant filed objections to
the R&R on June 11, 2013, in which he once again argued generally
that his counsel was ineffective with respect to his guilty plea
and sentencing. (Dkt. No. 12). His objections consist primarily of
explanations of the various legal principles attendant to
ineffective assistance of counsel claims and do not address any of
the timeliness concerns raised in the Hill v. Braxton notice and
the R&R.

The statute of limitations for Wygant’s petition expired on
September 30, 2010, one year after his judgment of conviction
became final. 28 U.S.C. § 2255(f)(1); see Clay v. United States,
537 U.S. 522, 525 (2003). He did not file the instant petition
until October 22, 2012. Upon de novo review of the issues raised,
the Court agrees with the magistrate judge that Wygant has failed
to show that he is entitled to equitable tolling or that his
petition is otherwise timely. Consequently, the Court:
ADOPTS the R&R in its entirety (dkt. no. 9);

1.

2

Case 1:12-cv-00163-IMK-JSK Document 13 Filed 07/30/13 Page 3 of 3 PageID #: 57

WYGANT v. USA

1:12CV163

ORDER ADOPTING REPORT AND RECOMMENDATION

2.

3.

DENIES the instant § 2255 petition as untimely (dkt. no.
1); and
ORDERS that this case be DISMISSED WITH PREJUDICE and
STRICKEN from the Court’s docket.

Further, finding no issue of constitutional merit upon which
reasonable jurists might differ, the Court DENIES a certificate of
appealability in this matter. See Rule 11(a), Rules Governing
Section 2254 and 2255 Cases.

It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
the Court to enter a separate judgment order and to transmit copies
of both orders to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.

DATED: July 30, 2013.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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