Mitchell v. Waid

Filing 11

MEMORANDUM OPINION AND ORDER ADOPTING 8 the PROPOSED FINDINGS AND RECOMMENDATION; DENYING 2 Plaintiff's APPLICATION to Proceed without Prepayment of Fees or Costs; DISMISSING 1 Plaintiff's 2254 PETITION and DIRECTING the Clerk to remo ve this matter from the Court's docket. Additionally, the Court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 12/2/2009. (cc: Plaintiff, Pro Se and counsel of record) (arb) Modified on 12/2/2009 to add language re: denial of certificate of appealability (mjp).

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD RODNEY MITCHELL, Plaintiff, v. TERESA WAID, Warden, Huttonsville Correctional Center, Defendant. MEMORANDUM OPINION AND ORDER By Standing Order, this action was referred to United States Magistrate Judge R. Clarke VanDervort for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C.A. § 636(b)(1)(B). Magistrate Judge VanDervort submitted to CIVIL ACTION NO. 1:07-0589

the court his Findings and Recommendation on August 6, 2009, in which he recommended that the District Court deny plaintiff's application to proceed without payment of fees and costs, dismiss plaintiff's petition under 28 U.S.C. § 2254, and remove this matter from the court's docket. In accordance with the provisions of 28 U.S.C.A. § 636(b), the parties were allotted ten days, plus three mailing days, in which to file any objections to Magistrate Judge VanDervort's Findings and Recommendation. The failure of any party to file

such objections constitutes a waiver of such party's right to a de novo review by this court. Cir. 1989). Snyder v. Ridenour, 889 F.2d 1363 (4th

The parties failed to file any objections to the Magistrate Judge's Findings and Recommendation within the thirteen-day period. Having reviewed the Findings and Recommendation filed by

Magistrate Judge VanDervort, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby

DENIES plaintiff's application to proceed without payment of fees and costs, DISMISSES plaintiff's petition under 28 U.S.C. § 2254, and DIRECTS the Clerk to remove this matter from the court's docket. Additionally, the court has considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A

certificate will not be granted unless there is "a substantial showing of the denial of a constitutional right." 2253(c)(2). 28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the constitutional claims by this court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that the governing standard is Accordingly, the court DENIES a

not satisfied in this instance. certificate of appealability.

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The Clerk is further directed to forward a copy of this Memorandum Opinion and Order to plaintiff, pro se, and counsel of record. IT IS SO ORDERED this 2nd day of December, 2009. ENTER:

David A. Faber Senior United States District Judge

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