United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 5]
AND DISMISSING PETITION FOR HABEAS CORPUS PURSUANT TO 28
U.S.C. § 2255 [DKT. NO. 1]
M. KEELEY, UNITED STATES DISTRICT JUDGE
27, 2017, the petitioner, Charles Adkins
(“Adkins”), filed his second motion pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct
sentence (“Petition”) (Dkt. No. 1). In 2014,
Adkins pleaded guilty to one count of failing to update his
sex offender registration, in violation of 18 U.S.C. §
2250(a), and one count of conspiring to attempt to obstruct
justice, in violation of 18 U.S.C. § 1512(k) (Crim. No.
1:13cr17, Dkt. No. 265). Adkins now argues, among other
things, that he has legal documentation supporting his
innocence, that the Government used improper evidence, and
that his attorneys provided ineffective assistance (Dkt. No.
1 at 5-10). Pursuant to 28 U.S.C. § 636 and the local
rules, the Court referred the Petition to the Honorable
Michael J. Aloi, United States Magistrate Judge, for initial
11, 2017, Magistrate Judge Aloi filed a Report and
Recommendation (“R&R”) recommending that the
Petition be denied (Dkt. No. 5), noting that Adkins
previously had filed a § 2255 motion that was dismissed
as untimely (Civ. No. 1:16cv209). Second or successive
motions such as the instant Petition must first be certified
by a court of appeals to contain newly discovered evidence or
a new rule of constitutional law. 28 U.S.C. § 2255(h).
Because Adkins failed to obtain such authorization from the
Fourth Circuit before filing his motion, Magistrate Judge
Aloi concluded that the Court lacked authority to entertain
his Petition, and accordingly recommended its dismissal (Dkt.
No. 5 at 4-5). See United States v. Winestock, 340
F.3d 200, 207 (4th Cir. 2003).
R&R also informed Adkins of his right to file
“written objections identifying the portions of the
recommendation to which objections are made and the basis for
such objections” (Dkt. No. 5 at 5). Adkins filed timely
objections on July 19, 2017 (Dkt. No. 7).
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection is timely made. 28 U.S.C. § 636(b)(1)(C). On
the other hand, “the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the
purpose of an initial screening by the magistrate judge.
McPherson v. Astrue, 605 F.Supp.2d 744, 749 (S.D.
W.Va. 2009) (citing Howard's Yellow Cabs, Inc. v.
United States, 987 F.Supp. 469, 474 (W.D. N.C. 1997)).
Failure to raise specific errors waives the claimant's
right to a de novo review because “general and
conclusory” objections do not warrant such review.
Id. (citing Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); Howard's Yellow Cabs,
987 F.Supp. at 474); see also Green v. Rubenstein,
644 F.Supp.2d 723 (S.D. W.Va. 2009). Indeed, failure to file
specific objections waives appellate review of both factual
and legal questions. See United States v. Schronce,
727 F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore
v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
Adkins's objections fail to identify any specific errors
in Magistrate Judge Aloi's findings, and, in fact,
contain only passing reference to the R&R (Dkt. Nos. 7;
8). Rather, Adkins reiterates the arguments in his Petition,
asking the Court to “look beyond the time frame on
filing the 2255” (Dkt. No. 7 at 3). These reiterations
and general contentions, all of which were fully and fairly
addressed in the R&R, place the Court under no obligation
to conduct a de novo review. Diamond, 414
F.3d at 315. Therefore, upon review of the R&R and the
record for clear error, it adopts the opinion of the
Magistrate Judge for the reasons discussed in the R&R
(Dkt. No. 5).
conclusion, the Court:
1. ADOPTS the R&R (Dkt. No. 5);
2. OVERRULES Adkins's objections (Dkt.
Nos. 7; 8); and
3. DENIES the Petition (Dkt. No. 1) and
DISMISSES this case WITHOUT
PREJUDICE to Adkins's right to seek
authorization from the Fourth Circuit pursuant to 28 U.S.C.
to Rule 11(a) of the Rules Governing § 2255 Proceedings,
the district court “must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant” in such a case. If the court denies the
certificate, “a party may not appeal the denial but may
seek a certificate from the court ...