Berry v. Reherman

Filing 22

MEMORANDUM OPINION AND ORDER adopting the 20 Proposed Findings and Recommendation by Magistrate Judge, denying plaintiff's 1 Emergency Petition for Writ of Habeas Corpus (2241), granting defendant's 21 MOTION to Dismiss, and directing 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 2/17/2021. (cc: plaintiff; counsel of record) (arb)

Case 1:20-cv-00294 Document 22 Filed 02/17/21 Page 1 of 3 PageID #: 147

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
SALLY A. BERRY,
Plaintiff,
v.

CIVIL ACTION NO. 1:20-00294

M.E. REHERMAN, Warden,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Cheryl A. Eifert for submission of
findings and recommendations regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

Magistrate Judge Eifert submitted to the

court her Findings and Recommendation (“PF&R”) on October 16,
2020, in which she recommended that the district court deny
plaintiff’s emergency petition under 28 U.S.C. § 2241, and remove
this matter 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 Eifert’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).
Objections were due by October 30, 2020.
filed objections within the required time period.

Neither party
However, on

Case 1:20-cv-00294 Document 22 Filed 02/17/21 Page 2 of 3 PageID #: 148

January 6, 2021, defendant filed a motion to dismiss arguing that
the petition should be dismissed as moot because plaintiff was
placed on home confinement on October 21, 2020.

See ECF No. 21.

Having reviewed the Findings and Recommendation filed by
Magistrate Judge Eifert, the court adopts the findings and
recommendations contained therein.

Accordingly, the court hereby

DENIES plaintiff’s emergency petition under 28 U.S.C. § 2241,
GRANTS the motion to dismiss, 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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Case 1:20-cv-00294 Document 22 Filed 02/17/21 Page 3 of 3 PageID #: 149

IT IS SO ORDERED this 17th day of February, 2021.
ENTER:

David A. Faber
Senior United States District Judge

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