Herrera v. Masters
Filing
27
MEMORANDUM OPINION AND ORDER: The court ADOPTS the 22 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn, DISMISSES plaintiff's Section 2241 Petition and directs the Clerk to remove this case from the court's active docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 7/20/2016. (cc: plaintiff, pro se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
CARLOS HERRERA,
Plaintiff,
v.
CIVIL ACTION NO. 1:15-09028
BART MASTERS, Warden,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendations regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
Magistrate Judge Aboulhosn submitted to
the court his Findings and Recommendation on February 2, 2016, in
which he recommended that the district court dismiss plaintiff’s
petition under 28 U.S.C. § 2241 and remove this matter from the
court’s docket.
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 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. 1989).
The parties 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 Aboulhosn, the court adopts the findings and
recommendations contained therein.
Accordingly, the court hereby
DISMISSES plaintiff’s petition under 28 U.S.C. § 2241* 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.”
2253(c)(2).
28 U.S.C. §
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.
Accordingly, the court DENIES a
certificate of appealability.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to plaintiff, pro se, and counsel of record.
IT IS SO ORDERED this 20th day of July, 2016.
ENTER:
David A. Faber
Senior United States District Judge
*
As Respondent also pointed out in a Supplemental Response
filed on May 3, 2016, (ECF No. 26), dismissal for mootness is
appropriate given Herrera’s release from custody.
2
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