Taylor v. Batts

Filing 5

MEMORANDUM OPINION AND ORDER: The COURT ADOPTS the 4 Proposed Findings and Recommendation of Magistrate Judge VanDervort; DISMISSES petitioner's 1 MOTION to Amend under 28 U.S.C. Section 2241; and DIRECTS the Clerk to remove this matter from the court's active docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 3/28/2012. (cc: Petitioner, Pro Se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
KIMBERLY TAYLOR,
Petitioner,
v.

Civil Action No. 1:11-0172

MYRON BATTS, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner’s Motion to Amend
Under 28 U.S.C. § 2241. (Doc. No. 1).

By Standing Order, this

matter was referred to United States Magistrate Judge R. Clarke
VanDervort for the submission of proposed findings of fact and a
recommendation for disposition pursuant to 28 U.S.C. §
636(b)(1)(B).

Magistrate Judge VanDervort submitted to the

court his Proposed Findings and Recommendation (“PF&R”) on
February 24, 2012, in which he recommended that the court
DISMISS the Motion to Amend and REMOVE the matter from the
court’s docket.

(Doc. No. 4).

In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen 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 within the time allotted
constitutes a waiver of such party’s right to a de novo review
by this court.

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.
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1989).

Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.

2d 435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).
Neither party filed any objections to the Magistrate
Judge’s Findings and Recommendations within the required time
period.

Accordingly, the court ADOPTS the Findings and

Recommendations of Magistrate Judge VanDervort and:
1) DISMISSES the Motion to Amend under 28 U.S.C. § 2241; and
2) DIRECTS the Clerk to move this matter from the court’s
active docket.
Additionally, the court has considered whether to grant a
certificate of appealability in this case.

See 28 U.S.C. §

2253(c). To grant a certificate of appealability, there must be
a substantial showing of the denial of a constitutional right by
demonstrating that the issues raised are debatable among
jurists, that a court could resolve the issues differently, or
that the questions deserve further proceedings.
2253(c); Slack v. McDaniel, 529 U.S. 473 (2000).

28 U.S.C. §
The standard

is satisfied only upon a showing that reasonable jurists would
find that any assessment of the constitutional claims is
debatable or wrong and that any dispositive procedural ruling is
likewise debatable.

Miller-El v. Cockrell, 537 U.S. 322, 336-38

(2003); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

The

court concludes that the governing standard is not satisfied in

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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 on this 28th day of March, 2012.
ENTER:

David A. Faber
Senior United States District Judge

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