Daugherty v. Huttonsville Correctional Center, No. 5:2012cv00043 - Document 117 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the 111 Proposed Findings and Recommendations by Magistrate Judge, and ORDERS that the Respondent 9;s 32 MOTION for summary Judgment be DENIED and that this matter be REFERRED back to Judge VanDervort for further proceedings respecting the merits of the Petitioner's claims. Signed by Judge Irene C. Berger on 11/20/2014. (cc: USMJ VanDervort; attys; any unrepresented party) (msa)
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Daugherty v. Huttonsville Correctional Center Doc. 117 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION TONY DAUGHERTY, Petitioner, v. CIVIL ACTION NO. 5:12-cv-00043 HUTTONSVILLE CORRECTIONAL CENTER, Respondent. MEMORANDUM OPINION AND ORDER The Court has reviewed the Petitioner=s December 6, 2011 Petition under 28 U.S.C. ' 2254 (Document 1), brought on the grounds that juror prejudice and ineffective assistance of counsel marred his state court conviction and subsequent habeas proceedings. By Standing Order (Document 14) entered on January 10, 2012, this action was referred to the Honorable R. Clarke VanDervort, 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 October 30, 2014, the Magistrate Judge submitted a Proposed Findings and Recommendation (Document 111), wherein it is recommended that this Court deny the Respondent’s Motion for Summary Judgment (Document 32) and refer the matter back to Judge VanDervort for further proceedings with respect to the merits of the Petitioner’s claims, including any claims he might raise regarding ineffective assistance of counsel. Objections to the Magistrate Judge=s Proposed Findings and Recommendation were due by November 17, 2014. Neither party has timely filed objections to the Magistrate Judge=s Proposed Findings and Recommendation. The Respondent filed a Response to Magistrate’s Proposed Findings and Dockets.Justia.com Recommendation (Document 115), in which he indicates that he disagrees with the legal conclusion in the PF&R, but waives the right to object. 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 Respondent’s Motion for Summary Judgment (Document 32) be DENIED and that this matter be REFERRED back to Judge VanDervort for further proceedings respecting the merits of the Petitioner’s claims. The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge VanDervort, counsel of record, and any unrepresented party. ENTER: November 20, 2014
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