Kelly v. United States of America

Filing 16

MEMORANDUM OPINION AND ORDER: the court adopts Magistrate Judge Tinsley's PF&R as follows: 1) Petitioner's 1 Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 and Petitioner's 11 Motion for Writ of Mandamus are DEN IED; and 2)The Clerk is directed to remove this matter from the docket of the Court. Petitioner's motion for an extension of time is DENIED as moot. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 2/1/2017. (cc: attys; any unrepresented party) (mk)

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

CIVIL ACTION NO. 1:14-19369

SANDRA BUTLER, WARDEN,
Respondent.

MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of
proposed findings and recommendations (“PF&R”) for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. No. 4.)
Magistrate Judge Tinsley submitted to the court his PF&R on
October 14, 2016, in which he recommended that the Court deny
Petitioner’s Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241 (Doc. No. 1) and Petitioner’s Motion for Writ of
Mandamus (Doc. No. 11), and dismiss this civil action from the
docket of the court.
In accordance with 28 U.S.C. § 636(b), the parties were
allotted seventeen days in which to file any objections to
Magistrate Judge Tinsley’s PF&R.

The failure of any party to

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

Neither

party filed any objections to the Magistrate Judge’s PF&R within
the required time period.
Accordingly, the court adopts Magistrate Judge Tinsley’s
PF&R as follows:
1) Petitioner’s Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241 (Doc. No. 1) and Petitioner’s Motion for
Writ of Mandamus (Doc. No. 11) are DENIED; and
2) The Clerk is directed to remove this matter from the
docket of the Court.
Petitioner filed a letter form motion for an extension of
time to respond to the PF&R.

(Doc. No. 14.)

In that motion,

Petitioner asked for an additional thirty (30) days to respond
to the PF&R.

The additional time Petitioner requested has long

since passed and he has yet to file his objections.
Accordingly, Petitioner’s motion for an extension of time is
DENIED as moot.
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).

The standard is satisfied only upon a showing that
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28 U.S.C. §

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 further directed to forward a copy of this
Order to counsel of record and to Petitioner.
It is SO ORDERED this 1st day of February, 2017.

ENTER:
David A. Faber
Senior United States District Judge

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