United States District Court, S.D. West Virginia
WILLIAM S. GADD, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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.
Plaintiff's objection that the magistrate judge lacks
authority under 28 U.S.C. § 2243.
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
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 ...