Pineda-Volanos v. Masters

Filing 9

MEMORANDUM OPINION AND ORDER ADOPTING 7 PROPOSED FINDINGS AND RECOMMENDATIONS: The court hereby ADOPTS the factual and legal analysis contained within the PF&R, DENIES as moot Petitioner's 1 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, and DIRECTS the Clerk to remove this case from the court's docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 8/15/2016. (cc: attys; any unrepresented party) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ALEX PINEDA-VOLANOS,
Petitioner,
v.

Civil Action No: 1:14-27295

BART MASTERS,
Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court is petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
1).

(Doc. No.

By Standing Order, this matter was referred to United

States Magistrate Dwane L. Tinsley for submission of findings
and recommendations regarding disposition, pursuant to 28 U.S.C.
§ 636(b)(1)(B).

(Doc. No. 4).

Magistrate Judge Tinsley

submitted to the court his Proposed Findings and Recommendation
on July 25, 2016, in which he recommended that the district
court deny as moot petitioner’s petition for a writ of habeas
corpus and dismiss this action from the court’s docket.1

(Doc.

No. 7).
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing

1

Magistrate Judge Tinsley notes in his PF&R that petitioner was
released from custody on March 9, 2016, thereby rendering
petitioner’s petition moot. (Doc. No. 7 at 2).

days, in which to file any objections to Magistrate Judge
Tinsley’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 Tinsley, 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

standard is not satisfied in this instance.
court DENIES a certificate of appealability.

2 

Accordingly the

The court hereby ADOPTS the factual and legal analysis
contained within the PF&R, DENIES as moot petitioner’s petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, 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 15th day of August, 2016.

ENTER:

David A. Faber
Senior United States District Judge

3