Herrington v. Richard

Filing 9

MEMORANDUM OPINION AND ORDER: The court ADOPTS the 8 Proposed Findings and Recommendations by Magistrate Judge Eifert, DENIES Petitioner's 1 Application to Proceed Without Prepayment of Fees and Costs, DENIES Petitioner's 4 Petition f or Default, and DENIES Petitioner's 2 Section 2241 Petition. The court DENIES a certificate of appealability. The Clerk is directed to remove this matter from the court's docket. Signed by Senior Judge David A. Faber on 2/1/2017. (cc: Petitioner, pro se and counsel of record) (arb)

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

CIVIL ACTION NO. 1:16-cv-03617

BARBARA RICKARD, Warden,
Alderson FPC,
Respondent.

MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United
States Magistrate Judge Cheryl A. Eifert for submission of
proposed findings and recommendations (“PF&R”) for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. No. 3.)
Magistrate Judge Eifert submitted to the court her PF&R on
October 13, 2016, in which she recommended that the Court deny
Petitioner’s Application to Proceed Without Prepayment of Fees
and Costs; deny Petitioner’s Petition for Default; deny the
Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2241; and dismiss this action, with prejudice, and remove it
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 Eifert’s PF&R.

The failure of any party to
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file such objections within the time allotted 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).

Neither

party filed any objections to the Magistrate Judge’s PF&R within
the required time period.
Accordingly, the court adopts Magistrate Judge Eifert’s
PF&R as follows:
1) Petitioner’s Application to Proceed Without Prepayment of
Fees and Costs (Doc. No. 1), is DENIED;
2) Petitioner’s Petition for Default (Doc. No. 4), is
DENIED;
3) Petitioner’s Petition for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. No. 2) is DENIED; and
4) The Clerk is directed to remove this matter from the
docket of the court.
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.
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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 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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