Opinion
CIVIL ACTION NO. 2:12-CV-81
12-31-2013
BENNY MARSHALL KING, Petitioner, v. PAT MIRANDY, Warden, Respondent.
(BAILEY)
ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the Amended Report and Recommendation of United States Magistrate Judge James E. Seibert [Doc. 62]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Seibert for submission of a proposed report and a recommendation ("R & R"). Magistrate Judge Seibert filed his Amended R&R on November 26, 2013, wherein he recommends this Court dismiss the petitioner's § 2254 motion.
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 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 reflects that service was accepted on December 11, 2013 [Doc. 63]. No objections have been filed. Accordingly, this Court will review the R&R for clear error.
Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 62] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. The defendant's Motion for Summary Judgment [Doc. 34] is GRANTED. Accordingly, this Court ORDERS that the petitioner's § 2254 petition [Doc. 1] be DENIED and DISMISSED WITH PREJUDICE. This Court further DIRECTS the Clerk to enter judgment in favor of the defendant and to STRIKE this case from the active docket of this Court.
As a final matter, upon an independent review of the record, this Court hereby DENIES a certificate of appealability, finding that Mr. King has 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 of record and to mail a copy to the pro se petitioner.
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JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE