Myers v. United States of America, No. 1:2018cv00979 - Document 113 (S.D.W. Va. 2021)
Court Description: MEMORANDUM OPINION AND ORDER as to Eric Thomas Myers adopting the 110 Proposed Findings and Recommendation by Magistrate Judge; denying as moot Movant's 90 Motion to Vacate, Set Aside or Correct Sentence (2255); and dismissing this action from the court's docket. The court denies a certificate of appealability. Signed by Senior Judge David A. Faber on 6/14/2021. (cc: counsel of record; any unrepresented parties) (arb)
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Myers v. United States of America Doc. 113 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD ERIC THOMAS MYERS, Movant, v. CIVIL ACTION NO. 1:18-00979 CRIMINAL NO. 1:16-00223 UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER By Standing Order, this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of findings and recommendation regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley submitted to the court his Proposed Findings and Recommendation (“PF&R”) on November 9, 2020, in which he recommended that the court deny movant’s 1 § 2255 motion as moot, given movant’s release from federal custody on November 8, 2019, and the lack of a further term of supervised release ensuing thereafter. (See ECF No. 112.) In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days and three mailing days in which to file objections to the PF&R. The failure of any 1 The PF&R uses the terms “Movant,” “Defendant,” and “Petitioner” interchangeably to identify Mr. Myers. Dockets.Justia.com party to file such objections within the time allowed 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). Neither party filed any objections to the PF&R within the required time period. Accordingly, the court adopts the PF&R as follows: 1. Movant’s Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 90) is DENIED as moot; and 2. This action is DISMISSED from the court’s 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. court DENIES a certificate of appealability. 2 Accordingly, the The Clerk is directed to send a copy of this Memorandum Opinion and Order to counsel of record and any unrepresented parties. IT IS SO ORDERED this 14th day of June, 2021. ENTER: David A. Faber Senior United States District Judge 3
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