Ferguson v. United States of America

Filing 21

MEMORANDUM OPINION AND ORDER: The court ADOPTS the 19 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn, GRANTS defendant's 8 motion to dismiss plaintiff's petition under 28 U.S.C. § 2241, DISMISSES this action, 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 9/20/2018. (cc: plaintiff and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
KENITHA L. FERGUSON,
Plaintiff,
v.

CIVIL ACTION NO. 1:17-04570

JENNIFER SAAD, Acting Warden,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendations regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

Magistrate Judge Aboulhosn submitted to

the court his Findings and Recommendation (“PF&R”) on August 15,
2018, in which he recommended that the district court grant
defendant’s motion to dismiss plaintiff’s petition under 28
U.S.C. § 2241, dismiss this action, and remove it from the
court’s docket.
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 Aboulhosn’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.
(4th Cir. 1989).

Snyder v. Ridenour, 889 F.2d 1363

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 Aboulhosn, the court
adopts the findings and recommendations contained therein.
Accordingly, the court hereby GRANTS defendant’s motion to
dismiss plaintiff’s petition under 28 U.S.C. § 2241, DISMISSES
this action, and directs the Clerk 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.

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.

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IT IS SO ORDERED this 20th day of September, 2018.
ENTER:
David A. Faber
Senior United States District Judge

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