Cannon v. Heckard, No. 5:2023cv00566 - Document 13 (S.D.W. Va. 2024)
Court Description: ORDER adopting the 11 Proposed Findings and Recommendations; granting Respondent's 9 Motion to Dismiss; denying Mr. Cannon's 1 and 4 Petition and Motion to Waive Extension; denying as moot Mr. Cannon's 2 Motion for Appointment of Counsel; dismisses Mr. Cannon's 1 Writ of Habeas Corpus and dismisses this matter. Signed by Judge Frank W. Volk on 2/8/2024. (cc: counsel of record; any unrepresented party) (lca)
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Cannon v. Heckard Doc. 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT BECKLEY DOYAL R. CANNON, Petitioner, v. CIVIL ACTION NO. 5:23-cv-00566 WARDEN KATINA HECKARD, Respondent. ORDER Pending are Petitioner Doyal R. Cannon’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [ECF 1], Motion for Appointment of Counsel [ECF 2], Motion to Waive the Requirement to Exhaust Administrative Remedies [ECF 4], all filed August 22, 2023, and Respondent’s Motion to Dismiss, contained in her Response [ECF 9], filed October 25, 2023. This action was previously referred to the Honorable Cheryl A. Eifert, United States Magistrate Judge, for submission of proposed findings and a recommendation (“PF&R”). Magistrate Judge Eifert filed her PF&R on January 17, 2024. Magistrate Judge Eifert recommended that the Court grant Respondent’s Motion to Dismiss, deny Mr. Cannon’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 and Motion to Waive Exhaustion, deny as moot Mr. Cannon’s Motion for Appointment of Counsel, and dismiss and remove this matter from the docket. The Court need not 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. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” (emphasis Dockets.Justia.com added)). Failure to file timely objections constitutes a waiver of de novo review and the Petitioner’s right to appeal the Court’s order. See 28 U.S.C. § 636(b)(1); see also United States v. De LeonRamirez, 925 F.3d 177, 181 (4th Cir. 2019) (Parties may not typically “appeal a magistrate judge’s findings that were not objected to below, as § 636(b) doesn’t require de novo review absent objection.”); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989). Further, the Court need not conduct de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections in this case were due on February 5, 2024. No objections were filed. Accordingly, the Court ADOPTS the PF&R [ECF 11], GRANTS Respondent’s Motion to Dismiss [ECF 9], DENIES Mr. Cannon’s Petition and Motion to Waive Exhaustion [ECF 1 and 4], DENIES AS MOOT Mr. Cannon’s Motion for Appointment of Counsel [ECF 2], DISMISSES Mr. Cannon’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [ECF 1] and DISMISSES the matter. The Court directs the Clerk to transmit a copy of this Order to any counsel of record and any unrepresented party. ENTER: 2 February 8, 2024
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