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applying procedural default doctrine to claims deemed "waived on appeal" by WVSCA as a result of petitioner's "cursory" arguments in appeal brief
Summary of this case from Clement v. BallardOpinion
CIVIL ACTION NO. 3:06-CV-4.
July 27, 2007
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 John S. Kaull. By Standing Order entered on March 24, 2000, this action was referred to Magistrate Judge Kaull for submission of a proposed report and a recommendation ["R R"]. Magistrate Judge Kaull filed his R R on February 15, 2007 [Doc. 26]. In that filing, the magistrate judge recommended that this Court grant the Motion to dismiss [Doc. 14], grant the motion for summary judgment [Doc. 13], and to deny and dismiss with prejudice the petitioner's application under 28 U.S.C. § 2254 [Doc. 1].
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 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 Kaull's R R were due April 27, 2007 [Doc. 28], pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The petitioner timely filed his Objections [Doc. 29] on April 3, 2007. Accordingly, this Court will conduct a de novo review only as to the portions of the report and recommendation to which the petitioner objected. The remaining portions of the report and recommendation to which the petitioner did not object will be reviewed for clear error.
Upon careful review of the report and recommendation [Doc. 26] and the petitioner's objections thereto [Doc. 29], it is the opinion of this Court that the Magistrate Judge's Report and Recommendation [Doc. 26] should be, and is, hereby ORDERED ADOPTED for the reasons stated therein. Accordingly, the Court hereby DENIES the petitioner's application under 28 U.S.C. § 2254 [Doc. 1], and DISMISSES it with prejudice. Additionally, the Court GRANTS the respondent's motion to dismiss [Doc. 14], and GRANTS the respondent's motion for summary judgment [Doc. 13].
The Clerk is directed to mail true copies of this Order to all counsel of record and the pro se petitioner.