Dyess v. United States of America, No. 2:2012cv03624 - Document 1320 (S.D.W. Va. 2015)

Court Description: MEMORANDUM AND OPINION AND ORDER; the Court adopts the findings and recommendation; the Court denies a certificate of appealability; dismissing the 1242 MOTION by Calvin Douglas Dyess to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to Title 28, United States Code, Section 2255; directing the Clerk to remove this case from the Courts docket; Cross Reference Criminal Case Number 2:99-00012-01. Signed by Judge David A. Faber on 8/18/2015. (cc: petitioner) (tmr)

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Dyess v. United States of America Doc. 1320 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON CALVIN DOUGLAS DYESS, Petitioner, v. Civil Action No: 2:12-03624 Criminal Action No: 2:99-00012-01 UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER Pending before the court is petitioner’s motion to vacate, set aside, or correct a sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. (Doc. No. 1242). By Standing Order, this matter was referred to United States Magistrate Judge Dwayne L. Tinsley for submission of findings and recommendations regarding disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. No. 1310). Magistrate Judge Tinsley submitted to the court his Proposed Findings and Recommendation on June 19, 2015, in which he recommended that the district court dismiss petitioner’s motion and remove this matter from the court’s docket. (Doc. No. 1313). In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Tinsley’s Findings and Recommendation. The failure to file such 1 Dockets.Justia.com objections constitutes a waiver of the right to a de novo review by this court. 1989). Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. Petitioner moved the court for an extension of time to file objections and the court granted his request for an extension, ordering him to submit any objections by August 7, 2015. Petitioner failed to file any objections to the Magistrate Judge’s Findings and Recommendation within the prescribed period. Having reviewed the Findings and Recommendation filed by Magistrate Judge Tinsley, the court adopts the findings and recommendation contained therein. 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). Id. § 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 court hereby DISMISSES petitioner’s motion to vacate, set aside, or correct a sentence by a person in federal custody, (Doc. No. 1242), and DIRECTS the Clerk to remove this case from the court’s docket. The Clerk is further directed to forward a copy of this Memorandum Opinion and Order to petitioner, pro se. It is SO ORDERED this 18th day of August, 2015. ENTER: David A. Faber Senior United States District Judge 3

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