Stewart v. Mirandy

Filing 17

MEMORANDUM OPINION AND ORDER: The court ADOPTS the 16 Proposed Findings and Recommendation by Magistrate Judge Dwane L. Tinsley, DENIES plaintiff's 1 Petition for Writ of Habeas Corpus (2254), dismisses this civil action and removes this matter from the court's docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 8/15/2019. (cc: plaintiff and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
TIMOTHY STEWART,
Plaintiff,
v.

CIVIL ACTION NO. 1:16-cv-09244

PATRICK MIRANDY, Warden,
St. Mary’s Correctional Center,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of
findings and recommendations regarding disposition pursuant to
28 U.S.C. § 636(b)(1)(B).

Magistrate Judge Tinsley submitted to

the court his Findings and Recommendation (“PF&R”) on July 22,
2019, in which he recommended that the district court deny
plaintiff’s Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2254 (ECF No. 1).
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
Tinsley’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.
889 F.2d 1363 (4th Cir. 1989).

Snyder v. Ridenour,

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 Tinsley, the court
adopts the findings and recommendations contained therein.
Accordingly, the court FINDS that the state court’s decision
denying the plaintiff habeas corpus relief on the basis of an
alleged violation of the Double Jeopardy Clause was neither
contrary to, nor an unreasonable application of, clearlyestablished federal law, and that the defendant is entitled to
judgment as a matter of law on Ground One of plaintiff’s section
2254 petition.

The court further FINDS that the state court’s

decisions were neither contrary to, nor an unreasonable
application of, clearly established federal law, nor were such
decisions based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.
Consequently, the plaintiff is not entitled to relief on Grounds
Two and Three of his section 2254 petition.

Therefore, the

court hereby DENIES plaintiff’s Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254 (ECF No. 1), dismisses this civil
action and removes this matter 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
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 directed to forward a copy of this
Memorandum Opinion and Order to plaintiff and counsel of record.
IT IS SO ORDERED this 15th day of August, 2019.
ENTER:

David A. Faber
Senior United States District Judge

3