Bailey v. Masters
Filing
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MEMORANDUM OPINION AND ORDER: the court DENIES a certificate of appealability; ADOPTS the PF&R; DENIES petitioner's 1 Application to Proceed without Prepayment of Fees or Costs; construes petitioner's 2 petition for a writ of habeas corpus as a civil rights action and DISMISSES it as moot; and DIRECTS the Clerk to remove this case from the court's docket. Signed by Judge David A. Faber on 11/9/2015. (cc: Petitioner, pro se; and counsel of record) (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
WILLIAM MCKINLEY JACKSON BAILEY,
Petitioner,
v.
Civil Action No: 1:14-07348
BART MASTERS,
Warden
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court are petitioner’s petition for a
writ of habeas corpus, (Doc. No. 2), and his application to
proceed without prepayment of fees and costs.
(Doc. No. 1).
By
Standing Order, this matter was referred to United States
Magistrate Judge Cheryl A. Eifert for submission of findings and
recommendations regarding disposition, pursuant to 28 U.S.C. §
636(b)(1)(B).
(Doc. No. 3).
Magistrate Judge Eifert submitted
to the court her Proposed Findings and Recommendation on October
8, 2015, in which she recommended that the district court deny
petitioner’s application to proceed without prepayment of fees
and costs, construe his § 2241 petition for a writ of habeas
corpus as a civil rights action under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), dismiss it as moot, and remove this matter from the
court’s docket.
(Doc. No. 5 at 6).
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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
Eifert’s Findings and Recommendation.
The failure to file such
objections constitutes a waiver of the right to a de novo review
by this court.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.
1989).
Petitioner failed to file any objections to the Magistrate
Judge’s Findings and Recommendation within the seventeen-day
period.
Having reviewed the Findings and Recommendation filed
by Magistrate Judge Eifert, the court adopts the findings and
recommendation contained therein.
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).
Id. §
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
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standard is not satisfied in this instance.
Accordingly the
court DENIES a certificate of appealability.
The court hereby ADOPTS the factual and legal analysis
contained within the PF&R, DENIES petitioner’s application to
proceed without prepayment of fees and costs, (Doc. No. 1),
construes petitioner’s petition for a writ of habeas corpus as a
civil rights action and DISMISSES it as moot, (Doc. No. 2), and
DIRECTS the Clerk to remove this case from the court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and
petitioner, pro se.
It is SO ORDERED this 9th day of November, 2015.
ENTER:
David A. Faber
Senior United States District Judge
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