Parker v. Rickard
Filing
30
MEMORANDUM OPINION AND ORDER: The court ADOPTS the 27 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn; FINDS that plaintiff has failed to sustain his burden of showing the inadequacy or ineffectiveness of a Section 2255 M otion and his Section 2241 Petition should be dismissed. Therefore, the court DENIES plaintiff's 18 Motion Requesting Relief & Summary Judgment for Failure to Comply with Rule 1(b) and 4 of the Rules Governing 2254 Cases in the United States C ourts; GRANTS defendant's 20 Motion to Dismiss; and REMOVES this matter from the court's docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 8/29/2019. (cc: plaintiff and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JIMMY PARKER, JR.
Plaintiff,
v.
CIVIL ACTION NO. 1:18-cv-01069
BARBARA RICKARD, 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
February 6, 2019, in which he recommended that the district
court deny plaintiff’s Motion Requesting Relief & Summary
Judgment for Failure to Comply with Rule 1(b) and 4 of the Rules
Governing 2254 Cases in the United States District Courts (ECF
No. 18) and grant defendant’s Motion to Dismiss (ECF No. 20).
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.
Snyder v.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).
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 FINDS that the plaintiff has failed to
sustain his burden of showing the inadequacy or ineffectiveness
of a Section 2255 Motion and his Section 2241 Petition should be
dismissed.
Therefore, the court hereby DENIES plaintiff’s
Motion Requesting Relief & Summary Judgment for Failure to
Comply with Rule 1(b) and 4 of the Rules Governing 2254 Cases in
the United States District Courts (ECF No. 18), GRANTS
defendant’s Motion to Dismiss (ECF No. 20), 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
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.
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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 29th day of August, 2019.
ENTER:
David A. Faber
Senior United States District Judge
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