Johnson v. United States of America

Filing 34

MEMORANDUM OPINION AND ORDER: The court hereby adopts the factual and legal analysis contained in the 31 PF&R as follows: Petitioner's 1 petition for writ of habeas corpus and 24 motion to amend sentence are DENIED as moot due to peti tioner's release from custody; and the Clerk is DIRECTED 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 7/23/2018. (cc: Petitioner, pro se; counsel of record) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
DANIEL DONDREKUS JOHNSON,
Petitioner,
v.

CIVIL ACTION NO. 1:17-03864

WARDEN, USP McCreary,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court is petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 and motion to
amend sentence.

ECF Nos. 1, 24.

By Standing Order, the matter

was referred to United States Magistrate Judge Dwane L. Tinsley
for submission of proposed findings and recommendations (“PF&R”)
for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

On June

7, 2018, the magistrate judge submitted his PF&R, in which he
recommended that the district court deny as moot petitioner’s
petition and motion to amend sentence and remove the matter from
the court’s docket.

ECF No. 31.

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 Tinsley’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 filed any objections to the PF&R within the
seventeen-day 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 and
motion to amend sentence are DENIED as moot due to
petitioner’s release from custody, (ECF Nos. 1, 24); 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

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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 23rd day of July, 2018.
ENTER:

David A. Faber
Senior United States District Judge

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