Opinion
CIVIL ACTION NO. 2:11-CV-73 (BAILEY)
01-14-2013
ROGER LEE BOWERS, Petitioner, v. DAVID BALLARD, Warden, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge David J. Joel [Doc. 57]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Joel for submission of a proposed report and a recommendation ("R & R"). Magistrate Judge Joel filed his R&R on December 18, 2012. In that filing, the magistrate judge recommended that this Court deny the petitioner's § 2254 petition [Doc. 2] with prejudice.
Pursuant to 28 U.S.C. § 636 (b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, 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 the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); 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 Joel's R & R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The R&R was originally returned as undeliverable [Doc. 58] as the petitioner had been transferred to a new facility without notifying this Court as he was obligated to do. This Court took the liberty of locating the petitioner and remailed the R&R to his new facility at Saint Mary's Correctional Center. The Court does note that the petitioner did eventually notify this Court of his change of address on December 27, 2012 [Doc. 60]. The docket reflects that service was accepted on December 26, 2012 [Doc. 59]. No objections have been filed. Accordingly, this Court will review the R&R for clear error.
Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 57] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. The Respondent's Motion for Summary Judgment [Doc. 42] is hereby GRANTED. Accordingly, this Court DENIES WITH PREJUDICE the petitioner's § 2254 petition [Doc. 2]. Therefore, this matter is hereby ORDERED STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment in favor of the respondent.
As a final matter, upon an independent review of the record, this Court hereby DENIES the petitioner a certificate of appealability, finding that he has failed to make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and to mail a copy to the pro se petitioner.
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JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE