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United States v. Smith

United States District Court, E.D. Kentucky

June 5, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
DARLENE SMITH, Defendant. Criminal No. 11-47-GFVT

ORDER

GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT

This matter is before the Court pending review of the Recommended Disposition of United States Magistrate Judge Robert E. Wier [R. 112][1] filed herein on May 11, 2015. Consistent with local practice, the Recommended Disposition addresses the pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255, filed by Darlene Smith. The Recommended Disposition concludes that the Petitioner is not entitled to the relief sought because the motion was untimely. The Court ordered briefing on the issue of timeliness, but Smith did not respond, and the United States seeks dismissal for untimeliness. After further analysis the Magistrate determined that Smith’s petition is barred by the statute of limitations, and that equitable tolling does not apply. The Recommended Disposition also advises the parties that any objections must be filed within fourteen (14) days of service or waive the right to further appeal.[2] [Id. at 6-7.] As of this date, neither party has filed objections or sought an extension of time to do so.

Generally, this Court must make a de novo determination of those portions of a recommended disposition to which objections are made. 28 U.S.C. § 636(b)(1)(c). When no objections are made, however, this Court is not required to “review . . . a magistrate’s factual or legal conclusions, under a de novo or any other standard . . . .” Thomas v. Arn, 474 U.S. 140, 150 (1985). Parties who fail to object to a Magistrate’s recommended disposition are also barred from appealing a district court’s order adopting that report and recommendation. United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Nevertheless, this Court has examined the record, and it agrees with the Magistrate Judge’s Recommended Disposition.

Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as follows:

1. The Magistrate’s Recommended Disposition [R. 112] as to Darlene Smith is ADOPTED as and for the Opinion of the Court;

2. Smith’s petition to vacate her sentence under 28 U.S.C. §2255 [R. 112 in 11-cr-47] is DISMISSED with PREJUDICE;

3. As recommended by the Magistrate, a Certificate of Appealability is DENIED;

4. JUDGMENT in favor of Respondent will be entered contemporaneously herewith; and

5. This matter will be STRICKEN from the Court’s active docket.


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