Lopez-Delgado v. Rickard

Filing 10

MEMORANDUM OPINION AND ORDER: The court ADOPTS the factual and legal analysis contained within the 8 Proposed Findings and Recommendation by Magistrate Judge Cheryl A. Eifert; DISMISSES without prejudice petitioner's 1 & 2 Petition for Wri t of Habeas Corpus (2241); 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

MARIO ANTONIO LOPEZ-DELGADO,
Petitioner,
v.

CIVIL ACTION NO. 1:17-03259

BARBARA RICKARD, Warden,
FCI McDowell,
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.
2.

ECF Nos. 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 February 15, 2018, the

magistrate judge submitted her PF&R, in which she recommended
that the district court deny petitioner’s petition and dismiss
the matter from the court’s docket.

See ECF No. 8.

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.

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
DISMISSED without prejudice, (ECF Nos. 1, 2); and
2. 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
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.
court DENIES a certificate of appealability.

2

Accordingly, the

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