Head v. Batts
Filing
8
MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 7 Proposed Findings and Recommendation by Magistrate Judge VanDervort; DENIES AS MOOT 3 Application to Proceed without Prepayment of Fees or Costs filed by Theresa Head, DISMISSES 1 petit ioner's application under 28 U.S.C. Section 2241 and directs the Clerk to remove this case from the court's active docket. The court DENIES a certificate of appealability. Signed by Judge David A. Faber on 11/14/2012. (cc: petitioner, pro se and counsel of record) (mjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
THERESA HEAD,
Petitioner,
v.
CIVIL ACTION NO. 1:10-0155
MYRON L. BATTS, Warden,
Respondent.
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. § 636(b)(1)(B).
Magistrate Judge VanDervort submitted
to the court his Findings and Recommendation on October 10,
2012, in which he recommended that the District Court dismiss
petitioner’s application under 28 U.S.C. § 2241 and remove this
matter from the court’s docket.
(Doc. No. 7).
In accordance with 28 U.S.C. § 636(b), the parties were
allotted fourteen days, plus three mailing days, within 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.
(4th Cir. 1989).
Snyder v. Ridenour, 889 F.2d 1363
The parties failed to file any objections to Magistrate
Judge VanDervort’s Findings and Recommendation within the
seventeen-day period.
Having reviewed the Findings and
Recommendation filed by Magistrate Judge VanDervort, the court
adopts the findings and recommendations therein.
Accordingly,
the court DENIES AS MOOT petitioner’s Application to Proceed
Without Prepayment of Fees (Doc. No. 3), DISMISSES petitioner’s
application under 28 U.S.C. § 2241, (Doc. No. 1) and directs the
Clerk to remove this case from the court’s active 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.” 28 U.S.C. §
2253(c)(2).
The standard is satisfied only upon 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 not satisfied in this instance.
Accordingly, the
court DENIES a certificate of appealability.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to petitioner, pro se, and counsel of record.
IT IS SO ORDERED this 14th day of November, 2012.
ENTER:
David A. Faber
Senior United States District Judge
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