Terry v. United States

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

ANTOINE ELTORIO TERRY,

Petitioner,

v. CIVIL ACTION NO. 2:22-cv-00137 (Criminal No. 2:20-cr-00036)

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION AND ORDER

On March 14, 2022, the Petitioner, proceeding pro se, filed his Motion to Vacate, Set Aside, or Correct a Federal Sentence, or Conviction Pursuant to 28 U.S.C. § 2255 (Document 42). On August 25, 2023, the Petitioner filed a Motion Under Rule 22 Application to Individual Justice (Document 48). By Standing Order (Document 43) entered on March 16, 2022, the matter was referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636. On November 12, 2024, the Magistrate Judge submitted a Proposed Findings and Recommendation (Document 71) wherein it is recommended that this Court deny the Motion to Vacate, Set Aside, or Correct a Federal Sentence, or Conviction Pursuant to 28 U.S.C. § 2255 (Document 42), deny the Motion Under Rule 22 Application to Individual Justice (Document 48), and dismiss the matter 1 from the Court’s docket. Objections to the Magistrate Judge’s Proposed Findings and Recommendation were due by November 29, 2024. Neither party has timely filed objections to the Magistrate Judge’s Proposed Findings and Recommendation. 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). 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); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the Proposed Findings and Recommendation, and ORDERS that the Motion to Vacate, Set Aside, or Correct a Federal Sentence, or Conviction Pursuant to 28 U.S.C. § 2255 (Document 42) be DENIED, the Motion Under Rule 22 Application to Individual Justice (Document 48) be DENIED, and this matter be DISMISSED from the Court’s docket. The Court has additionally considered whether to grant a certificate of appealability. See

28 U.S.C. § 2253(c). A certificate will not be granted unless there is “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this Court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The Court concludes that the governing standard is not satisfied in this instance. Accordingly, the Court DENIES a certificate of appealability. 2 The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge Tinsley, counsel of record, and any unrepresented party. ENTER: December 3, 2024

IRENE C. G UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF WEST VIRGINIA