Plumley v. United States of America, No. 5:2009cv00677 - Document 403 (S.D.W. Va. 2012)
Court Description: MEMORANDUM OPINION AND ORDER: The Court DENIES Petitioner's 309 Motion to Amend and for Immediate Release (construed as a Motion to Vacate, Set Aside or Correct Sentence (2255), filed by Rodney Plumley); the Court DENIES Petitioner's [ 363] Application to Proceed without Prepayment of Fees or Costs filed by Rodney Plumley; the Court DENIES AS MOOT Petitioner's 362 Motion for Discovery filed by Rodney Plumley, and DIRECTS the Clerk to remove this action from the Court's docket. Signed by Judge Thomas E. Johnston on 6/21/2012. (cc: Magistrate Judge VanDervort; attys; any unrepresented party) (slr)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION RODNEY PLUMLEY, Petitioner, v. CIVIL ACTION NO. 5:09-cv-00677 (Criminal No. 5:05-cr-00224) UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER Petitioner Rodney Plumley, acting pro se, ( Petitioner ) filed a motion construed by the Court as a writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Dockets 309, 359.) On June 16, 2009, this Court referred Petitioner s motion to Magistrate Judge R. Clarke VenDervort for submission of proposed findings of fact and a recommendation ( PF&R ) pursuant to 28 U.S.C. § 636(b)(1)(b). (Docket 361.) On May 7, 2012, Magistrate Judge VanDervort issued a PF&R recommending the dismissal of petitioner s motion with prejudice as untimely filed. (Docket 402.) Magistrate Judge VanDervort specifically recognized that the statute of limitations to which Petitioner s motion is subject may be tolled under certain circumstances, found no such circumstances, but he specifically instructed Petitioner to set forth such conditions in his response to the PF&R, if any existed. (Id. at 6-7.) 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). In addition, failure to file timely objections constitutes a waiver of de novo review and Petitioner s right to appeal this Court s Order. Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge VanDervort s PF&R were due on May 24, 2012, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). To date, no objections have been filed. Accordingly, the Court hereby (1) DENIES Petitioner s motion [Docket 309]; (2) DENIES Petitioner s Application to Proceed IFP [Docket 363]; (3) DENIES AS MOOT Petitioner s Motion for Discovery [Docket 362]; and (4) DIRECTS the Clerk to remove this action from the Court s active docket. The Clerk is further directed to provide a copy of this Order to all counsel of record, the petitioner, pro se, and Magistrate Judge VanDervort. IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: June 21, 2012 _________________________________________ THOMAS E. JOHNSTON UNITED STATES DISTRICT JUDGE 2
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