Johnson v. FPC Alderson

Filing 15

MEMORANDUM OPINION AND ORDER: The court ADOPTS the factual and legal analysis contained within the 13 Proposed Findings and Recommendations by Magistrate Judge Cheryl A. Eifert; DENIES petitioner's 14 request to transfer the record from this case to Case No. 1:18-cv-00416; DENIES petitioner's 2 Petition for Writ of Habeas Corpus (2241); DENIES as moot petitioner's 1 Application to Proceed Without Prepayment of Fees and Costs; DISMISSES the petition with prejudice; 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 6/19/2018. (cc: petitioner, pro se and counsel of record)(arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

CARMEN JOHNSON,
Petitioner,
v.

CIVIL ACTION NO. 1:16-06206

WARDEN, FCI-Alderson,
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,(ECF No. 2);
and Application to Proceed Without Prepayment of Fees and Costs,
(ECF No. 1).

By Standing Order, the 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).

On March 29,

2018, the magistrate judge submitted her PF&R, in which she
recommended that the district court deny petitioner’s writ of
habeas corpus; deny petitioner’s application to proceed without
prepayment of fees and costs as moot; and dismiss this action,
with prejudice, from the court’s docket.

See ECF No. 13.

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 Eifert’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).
Neither party has filed objections to the magistrate
judge’s PF&R within the required time period. 1

Accordingly,

having reviewed the PF&R, the court hereby adopts the factual
and legal analysis contained therein, as follows:
1. Petitioner’s petition for a writ of habeas corpus is
DENIED, (ECF No. 2);
2. Petitioner’s application to proceed without prepayment of
fees and costs is DENIED as moot (ECF No. 1);
3. The petition is DISMISSED with prejudice; and
4. The Clerk is directed 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

1

Petitioner filed a motion for correction that attempts to
correct the factual recitation of Judge Eifert’s PF&R. ECF No.
14. Despite these factual objections, petitioner states that
she “agrees to have [this] case . . . dismissed,” because she
agrees that the proper vehicle for her action is a civil rights
complaint, not an action under 28 U.S.C. § 2241. To this end,
petitioner has already filed another action, Johnson v. Wilson
et al., Case No. 1:18-cv-00416. This motion for correction also
requests that the court transfer the record from this case to
the latter action. The court DENIES this request.
2

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 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 19th day of June, 2018.
ENTER:

David A. Faber
Senior United States District Judge

3