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Gadd v. United States

United States District Court, S.D. West Virginia

March 28, 2019

WILLIAM S. GADD, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID A. FABER SENIOR UNITED STATES DISTRICT JUDGE.

         By Standing Order, this matter was referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed findings and recommendations (“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. No. 6).

         Magistrate Judge Eifert submitted to the court her PF&R on August 9, 2019, in which she recommended that the Court deny the plaintiffs' motions as moot, deny the plaintiff's petition as a second, successive and unauthorized motion made pursuant to 28 U.S.C. § 2255; and that this action be dismissed, with prejudice, and removed from the docket of the court. (ECF Nos. 1, 5).

         In accordance with 28 U.S.C. § 636(b), the parties were allotted seventeen days in which to file any objections to Magistrate Judge Eifert's PF&R. The failure of any party to file such objections within the time allotted constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). The plaintiff submitted objections (ECF NO. 10) and filed a Motion to Strike (ECF No. 9). The court reviews the plaintiff's objections below.

         I. Discussion

         a. Underlying Claim

         The petition brought his claim as a Writ of Habeas Corpus, seeking the relief of correcting his presentence report. (ECF No. 2). The petition alleges that “[a]pproximately 10 points used in the presentence report were used to enhance the Petitioner's sentence. These items were never part of the indictment or were any of the items presented at the trial. Petitioner is presumed innocent of these items used to enhance the Petitioner's sentence.” Id. at p. 2. The plaintiff further claims that his Fifth, Sixth, and Fourteenth Amendment rights under the Construction were violated and that his presentence report should be amended to reflect his concerns. Id.

         b. Objections

         i. Plaintiff's objection that the magistrate judge lacks authority under 28 U.S.C. § 2243.

         In the plaintiff's objection, he challenges the authority of the magistrate judge to make findings in the instant matter. Furthermore, the plaintiff argues that because the defendant never answered his complaint, the magistrate judge has acted as both an advocate and a district court judge. (ECF No. 10, pgs. 2-3). The court finds the plaintiff's argument to be erroneous.

         The jurisdiction and powers of magistrate judges is codified in 28 U.S.C. § 636. § 636(b) states:

a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.
a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall ...

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