United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is the Report and Recommendation
("R&R") of United States Magistrate Judge
Robert W. Trumble. Pursuant to this Court's Local Rules,
this action was referred to Magistrate Judge Trumble for
submission of a proposed R&R. Magistrate Judge Trumble
issued his R&R [ECF No. 88] on July 18, 2019. Therein,
Magistrate Judge Trumble recommends that the Petitioner's
Motion to Vacate under 28 U.S.C. § 2255 [ECF No. 74] be
denied and dismissed with prejudice.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of the magistrate judge's
findings where 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 to which no objection is made. Thomas v. Arn,
474 U.S. 140, 150 (1985). Failure to file timely objections
constitutes a waiver of de novo review and of a
petitioner's 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).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of service. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). The R&R was mailed to the
Petitioner on July 18, 2019. ECF No. 88. The Petitioner
accepted service on July 22, 2019. ECF No. 89. The Petitioner
filed his objections on August 2, 2019. ECF No. 90.
Accordingly, the Court will review the portions of the
R&R to which the Petitioner objects de novo.
R&R, Magistrate Judge Trumble recommends that the
Petitioner's Motion to Vacate [ECF No. 74] be denied and
dismissed with prejudice because: (1) the motion is time
barred; and (2) the Petitioner does not qualify for equitable
tolling. First, Magistrate Judge Trumble found that the
Petitioner's § 2255 motion is time barred because he
filed his motion to vacate four months after the one-year
limitation period. See ECF No. 88 at 5. The
Petitioner does not object to this finding. Accordingly, the
Court adopts Magistrate Judge Trumble's finding that the
Petitioner's § 2255 motion is time barred unless the
Petitioner qualifies for equitable tolling.
Magistrate Judge Trumble found that the Petitioner does not
qualify for equitable tolling because the Petitioner has: (1)
not been “pursuing his rights diligently”; and
(2) there was not some “extraordinary
circumstance” that stood in the Petitioner's way
and prevented timely filing. Id.; see also
Whiteside v. United States, 775 F.3d 180, 184 (4th Cir.
2014) (citing Holland v. Florida, 560 U.S. 631, 649
(2010)). The Petitioner originally offered two reasons why he
believed he was eligible for equitable tolling-first, that he
was transferred between prison facilities, and second, that
he needed a particular email before filing his motion to
vacate. Magistrate Judge Trumble thoroughly addressed these
issues and rejected the Petitioner's contention that
these circumstances qualified him for equitable tolling.
opposition to Magistrate Judge Trumble's findings, the
Petitioner asks the Court to “take judicial
notice” that the Fourth Circuit has not decided whether
circumstances analogous to the Petitioner's warrant
equitable tolling. ECF No. 90 at 2. Although the Court
acknowledges that the Fourth Circuit has not decided the
issue, the Court is persuaded by the overwhelming weight of
authority that the Petitioner's circumstances do not
warrant equitable tolling. See Atkins v. Harris, No.
C 98-3188 MJJ, 1999 WL 13719 at *2 (N.D. Cal. Jan. 7, 1999);
Lucero v. Suthers, 16 Fed. App'x 964, 965 (10th
Cir. 2001); Johnson v. Hill, 224 Fed. App'x. 641
(9th Cir. 2007); United States v. Fredette, 191 Fed.
App'x. 711, 713 (10th Cir. 2006); Lott v.
Mueller, 304 F.3d 918, 922 (9th Cir. 2002);
Montenegro v. United States, 248 F.3d 585, 594 (7th
Cir. 2001) (overruled on other grounds); Akins v. United
States, 204 F.3d 1086, 1089 (11th Cir. 2000); Warren
v. Kelly, 207 F.Supp.2d 6, 10 (E.D.N.Y. 2002);
United States v. Gambini, No. CIV.A. 99-225, 2002 WL
1767418 at *2 (E.D. La. July 30, 2002); Arevalo-Hernandez
v. United States, Nos. 7:09-CR-097-FL-2; 7:11-CV-161-FL,
2012 WL 255536 (E.D. N.C. January 27, 2012).
final matter, in his objections the Petitioner appears to
offer, for the first time, a final reason why equitable
tolling is warranted. The Petitioner avers that he could not
file his motion to vacate until after his state charges were
resolved because it was only at that point that he discovered
that the Government did not “make sure” that his
sentence in this Court “was run concurrent with any
sentence [he] received from [state] court.” ECF No. 90
at 2. However, this argument is without merit as the
Petitioner's judgment and commitment order, entered on
September 27, 2016, clearly states that his federal sentence
was to run consecutively to any anticipated West
Virginia state sentence. ECF No. 52. Therefore, the
Petitioner should have been on notice at that time that his
federal sentence would run consecutive to any state sentence.
upon careful review of the R&R, it is the opinion of this
Court that Magistrate Judge Trumble's Report and
Recommendation [ECF No. 88 in 3:15-CR-26, ECF No. 6 in
3:18-CV-20] should be, and is hereby, ORDERED
ADOPTED for the reasons more fully stated therein.
Therefore, the Petitioner's Motion to Vacate [ECF No. 74
in 3:15-CR-26, ECF No. 1 in 3:18-CV-20] is
DENIED and DISMISSED WITH
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).
matter is ORDERED STRICKEN from the
Court's active docket. The Clerk of Court is
DIRECTED to mail a copy of this Order to the
Petitioner by certified mail, return receipt requested, at
his last known address as reflected on the docket sheet.
 All CM/ECF numbers cited refer to
Petitioner's criminal case, 3:15-CR-26, unless ...