Taylor v. Ballard

Full title: DAVID LEE TAYLOR, Petitioner, v. DAVID BALLARD, WARDEN, Respondent

Court: United States District Court, N.D. West Virginia, Elkins

Date published: Feb 25, 2010

CIVIL ACTION NO. 2:09-CV-78 (MAXWELL) (N.D.W. Va. Feb. 25, 2010)

Opinion

CIVIL ACTION NO. 2:09-CV-78 (MAXWELL).

February 25, 2010

ORDER ADOPTING REPORT AND RECOMMENDATIONS

JOHN BAILEY, District Judge

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. 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 R R on January 25, 2010 [Doc. 23]. In that filing, the magistrate judge recommended that this Court deny the § 2254 petition.

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 Seibert's R R were due within fourteen (14) days after being served with a copy of the R R pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service was accepted on January 28, 2010. See Doc. 24. To date, neither party has filed objections. Accordingly, this Court will review the report and recommendation for clear error.

Having reviewed the record and the magistrate judge's R R, it is the opinion of this Court that the recommendations of Magistrate Judge Seibert [Doc. 23] should be, and are, hereby ORDERED ADOPTED. Therefore, the respondent's Motion to Dismiss [Doc. 15] is hereby GRANTED. Accordingly, the Court DENIES and DISMISSES with prejudice the petitioner's § 2254 Application for Habeas Corpus [Doc. 1]. Accordingly, this action is hereby ORDERED STRICKEN from the active docket of this Court.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all counsel of record and to mail a copy to the pro se petitioner.

Exhibit