Toler v. United States of America, No. 5:2009cv01323 - Document 90 (S.D.W. Va. 2012)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the 88 Proposed Findings and Recommendations, and ORDERS that Petitioner's 75 Section 2255 Motion be DENIED and that this matter be REMOVED from its docket. The Court ORDERS that a certificate of appealability be DENIED. Signed by Judge Irene C. Berger on 11/28/2012. (cc: attys; any unrepresented party) (msa)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION GARRY L. TOLER, Petitioner, v. CIVIL ACTION NO. 5:09-cv-01323 (Criminal No. 5:03-cr-00122) UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER The Court has reviewed Petitioner s Letter-form Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (Document 75). This action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). (Document 77). On November 1, 2012, the Magistrate Judge submitted Proposed Findings and Recommendation ( PF&R ) (Document 88), wherein it is recommended that this Court deny Petitioner s motion as it represents a successive proceeding under Section 2255 filed without the authorization of the Court of Appeals. It is further recommended that the instant action be removed from the Court s docket. 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). Failure to file timely objections constitutes a waiver of de novo review and the Petitioner s right to appeal this Court s Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984). In addition, this Court need not conduct a 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 to the PF&R in this case were due on November 19, 2012. To date, no party has filed any objections to the Magistrate Judge s Proposed Findings and Recommendation. Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the Proposed Findings and Recommendation, and ORDERS that Petitioner s Section 2255 Motion (Document 75) be DENIED and that this matter be REMOVED from its docket. The Court has additionally 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. Id.§ 2253(c)(2). 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 ORDERS that a certificate of appealability be DENIED. 2 The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge VanDervort, counsel of record, and any unrepresented party. ENTER: 3 November 28, 2012

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