United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING
MOTION FOR VOLUNTARY DISMISSAL
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
petitioner, Rodney Curtis Hamrick, filed a motion (Civil
Action No. 5:19CV289, ECF No. 1; Criminal Action No.
5:91CR56, ECF No. 104) under 28 U.S.C. § 2255 moving this
Court to vacate petitioner's sentence in the above-style
civil action was referred to United States Magistrate Judge
James P. Mazzone under Local Rule of Prisoner Litigation
Procedure 2. Magistrate Judge Mazzone issued a report and
recommendation (ECF No. 4/ECF No. 107) recommending that the
petitioner's motion be denied and dismissed as an
unauthorized second or successive motion. Id. at 5.
The petitioner did not file objections to the report and
recommendation. Rather, the petitioner filed a “motion
to voluntarily dismiss civil action.” ECF No. 110.
following reasons, this Court affirms and adopts the report
and recommendation in its entirety and grants the motion for
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. 107) in its
report and recommendation, the magistrate judge determined
that the current § 2255 motion is a second or successive
motion and further found that the petitioner did not obtain
authorization from the Fourth Circuit to file a successive
§ 2255 motion. As the magistrate judge correctly noted,
in the instant case, this Court is without authority to hear
petitioner's current federal habeas petition. Therefore,
this Court finds that the magistrate judge properly concluded
that petitioner's motion must be denied and 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.
Additionally, upon review of the petitioner's motion for
voluntary dismissal, this Court finds that it is appropriate
to grant the motion and dismiss this civil action.
reasons set forth above, the report and recommendation of the
magistrate judge (ECF No. 4/ECF No. 107) 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. 104) is DENIED. The petitioner's motion for
voluntary dismissal (ECF No. 110) is GRANTED. It ...