United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE.
petitioner, Frederick Lee Padgett, by counsel Brendan S.
Leary, Assistant Federal Public Defender, filed a motion
(Civil Action No. 5:16-CV-98, ECF No. 1; Criminal Action No.
5:98-CR-11, ECF No. 150) under 28 U.S.C. § 2255 moving this
Court to vacate petitioner's sentence in the above-style
action. This Court then entered an order directing the
government to respond. ECF No. 154. After the
government's delay in filing its response, the magistrate
judge entered an order to show cause. ECF No. 160. The
government then filed a response in opposition to the
petitioner's motion. ECF No. 163.
civil action was referred to United States Magistrate Judge
Robert W. Trumble under Local Rule of Prisoner Litigation
Procedure 2. Magistrate Judge Trumble issued a report and
recommendation (Civil Action No. 5:16-CV-98, ECF No. 4;
Criminal Action No. 5:98-CR-11, ECF No. 164) recommending
that the petitioner's motion be denied and dismissed with
prejudice as untimely. Id. at 1, 5. The petitioner
did not file objections to the report and recommendation. For
the following reasons, this Court affirms and adopts the
report and recommendation in its entirety.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
As to findings where no objections were made, such findings
and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A). Because the petitioner did not file any
objections to the report and recommendation, the magistrate
judge's findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A).
Court, after review, finds no clear error in the
determinations of the magistrate judge and adopts and affirms
the report and recommendation (ECF No. 4/ECF No. 164) in its
report and recommendation, the magistrate judge addressed the
government's argument that the petition is untimely. As
the magistrate judge correctly noted, in the instant case,
because the Supreme Court has not yet addressed whether the
residual clause of the mandatory Sentencing Guidelines is
unconstitutionally vague, the right on which petitioner
relies has not yet been “recognized” for purposes
of § 2255(f)(3). Id. at 4-5. This Court finds
that the magistrate judge correctly determined that because
petitioner's right has not yet been recognized by the
Supreme Court, his motion under § 2255 is untimely.
Therefore, the magistrate judge properly concluded that
petitioner's motion must be dismissed.
this Court finds that the petitioner was properly advised by
the magistrate judge that failure to timely object to the
report and recommendation in this action would result in a
waiver of appellate rights. Because the petitioner has failed
to object, he has waived his right to seek appellate review
of this matter. See Wright v. Collins, 766 F.2d 841,
844-45 (4th Cir. 1985).
review, this Court finds no clear error in the determinations
of the magistrate judge and thus upholds his recommendation.
reasons set forth above, the report and recommendation of the
magistrate judge (ECF No. 4/ECF No. 164) is AFFIRMED and
ADOPTED in its entirety. The petitioner's motion for a
writ of habeas corpus pursuant to 28 U.S.C. § 2255 (ECF
No. 1/ECF No. 150) is DENIED. It is further ORDERED that ...