Stebbins v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA UNITED STATES OF AMERICA, Plaintiff, v. CRIMINAL NO. 1:22-CR-21 (KLEEH) RANDALL RICHARD STEBBINS, Defendant. RANDALL RICHARD STEBBINS, Petitioner, v. CIVIL NO. 1:24-CV-34 (KLEEH) UNITED STATES OF AMERICA, Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255 On April 1, 2024, the pro se petitioner, Randall Richard Stebbins (“Petitioner”) filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. See ECF No. 58 in 1:22-CR-21 and ECF No. 1 in 1:24-CV-34. On September 11, 2024, the Magistrate Judge entered a Report and Recommendation (“R&R”), recommending that the Court deny and dismiss the petition with prejudice. See ECF No. 76 in 1:22-CR-21 and ECF No. 3 in 1:24-CV-34. The R&R informed Petitioner that he had fourteen (14) days ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255 from the date of service of the R&R to file “specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection.” It further warned him that the “[f]ailure to file written objections . . . shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals.” Plaintiff accepted service of the R&R on September 17, 2024. To date, no objections have been filed. When reviewing a magistrate judge’s R&R, the Court must review de novo only the portions to which an objection has been timely made. 28 U.S.C. § 636 (b)(1)(C). Otherwise, “the Court may adopt, without explanation, any of the magistrate judge’s recommendations” to which there are no objections. Dellarcirprete v. Gutierrez, 479 F. Supp. 2d 600 , 603–04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions of a recommendation to which no objection has been made unless they are clearly erroneous. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Because no party has objected, the Court is under no obligation to conduct a de novo review. Accordingly, the Court reviewed the R&R for clear error. Upon careful review, and finding no clear error, the Court ADOPTS the R&R [ECF No. 76 in 1:22-CR21 and ECF No. 3 in 1:24-CV-34] and further ORDERS as follows: ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255  Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody is DENIED and DISMISSED with prejudice [ECF No. 58 in 1:22CR-21 and ECF No. 1 in 1:24-CV-34];  Case No. 1:24-CV-34 is DISMISSED WITH PREJUDICE and STRICKEN from the Court’s active docket; and  The Clerk SHALL enter a separate judgment order in favor of the United States in 1:24CV-34. Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the district court “must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” “If the Court denies a certificate, a party may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” Id. The Court finds it inappropriate to issue a certificate of appealability in this matter because Petitioner has not made a “substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253 (c)(2). The Court, therefore, DENIES issuing a certificate of appealability. It is so ORDERED. The Clerk is directed to transmit copies of this Order to counsel of record via email and to Petitioner via certified mail, return receipt requested. RANDALL RICHARD STEBBINS 1:22-CR-21, 1:24-CV-34 ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255 DATED: October 7, 2024 THOMAS S. KLEEH, CHIEF JUDGE NORTHERN DISTRICT OF WEST VIRGINIA