Buckery v. Johnson

Filing 9

MEMORANDUM OPINION AND ORDER: adopting the factual and legal analysis contained within the 8 PF&R; denying petitioner's 1 Application to Proceed without Prepayment of Fees or Costs; dismissing this matter without prejudice; directing the Clerk to remove this case from the court's docket; denying a certificate of appealability. Signed by Judge David A. Faber on 12/5/2017. (cc: counsel of record; petitioner - pro se) (btm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
BRIAN KEITH BUCKERY,
Petitioner,
v.

CIVIL ACTION NO. 1:15-15736

B.J. JOHNSON, Warden,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court is petitioner’s application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
3.

ECF Nos. 1-

By Standing Order, the matter was referred1 to United States

Magistrate Judge Omar J. Aboulhosn for submission of proposed
findings and recommendations (“PF&R”) for disposition pursuant
to 28 U.S.C. § 636(b)(1)(B).

On September 29, 2017, the

magistrate judge submitted his PF&R, in which he recommended
that the district court deny petitioner’s application to proceed
without prepayment of fees and costs, dismiss this matter
without prejudice, and remove the matter from the court’s
docket.

ECF No. 8.

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This matter was originally referred to Magistrate Judge R.
Clarke VanDevort, ECF No. 4, and then upon his retirement, the
matter was referred to Magistrate Judge Aboulhosn. See ECF No.
5.

In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days, plus three mailing days,
in which to file any objections to Magistrate Judge Aboulhosn’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 Aboulhosn’s Findings and Recommendation within the
seventeen-day period.

Having reviewed the Findings and

Recommendation, the court adopts the findings and recommendation
contained therein.
The court hereby ADOPTS the factual and legal analysis
contained within the PF&R, (ECF No. 8), DENIES petitioner’s
application to proceed without prepayment of fees and costs,
(ECF No. 1), DISMISSES this matter, without prejudice, (ECF Nos.
2-3) and DIRECTS the Clerk to remove this case from the court’s
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
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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
Memorandum Opinion and Order to counsel of record and
petitioner, pro se.
It is SO ORDERED this 5th day of December, 2017.

ENTER:

David A. Faber
Senior United States District Judge

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