Godsey v. United States of America, No. 1:2009cv00130 - Document 101 (S.D.W. Va. 2011)
Court Description: MEMORANDUM OPINION AND ORDER as to Kenneth Robert Godsey: The Court ADOPTS Magistrate Judge R. Clarke VanDervort's 99 Proposed Findings and Recommendation; DENIES Plaintiff's 81 Motion to Vacate, Set Aside or Correct Sentence (2255) and directs the Clerk to remove this case from the Court's active docket. The Court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 12/28/2011. (cc: Plaintiff and counsel of record) (arb)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD KENNETH ROBERT GODSEY, Plaintiff, v. CIVIL ACTION NO. 1:09-0130 (Criminal No. 1:05-00114) UNITED STATES OF AMERICA, Defendant. MEMORANDUM OPINION AND ORDER By Standing Order, this action was referred to United States Magistrate Judge R. Clarke VanDervort for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C.A. § 636(b)(1)(B). Magistrate Judge VanDervort submitted to the court his Findings and Recommendation on November 22, 2011, in which he recommended that the District Court deny plaintiff s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, and remove this matter from the court s docket. In accordance with the provisions of 28 U.S.C.A. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge VanDervort s Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). The parties failed to file any objections to the Magistrate Judge's Findings and Recommendation within the requisite period. Having reviewed the Findings and Recommendation filed by Magistrate Judge VanDervort, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby DENIES plaintiff s motion under 28 U.S.C. § 2255, and directs the Clerk to remove this case from the court s active docket. Additionally, the court has 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. 2253(c)(2). 28 U.S.C. § 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. The Clerk is directed to forward a copy of this Memorandum Opinion and Order to plaintiff and counsel of record. IT IS SO ORDERED this 28th day of December, 2011. ENTER: David A. Faber Senior United States District Judge 2
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