Clary v. Maruka
Filing
8
MEMORANDUM OPINION AND ORDER adopting the 5 Proposed Findings and Recommendation by Magistrate Judge; denying the 1 Petition by Moses Clary for Writ of Habeas Corpus (2241); dismissing this case and directing the Clerk to remove this case from the court's active docket; additionally, denying a certificate of appealability. Signed by Senior Judge David A. Faber on 9/28/2023. (cc: plaintiff and counsel of record) (arb)
Case 1:20-cv-00440 Document 8 Filed 09/28/23 Page 1 of 3 PageID #: 41
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
MOSES CLARY,
Plaintiff,
v.
CIVIL ACTION NO. 1:20-00440
WARDEN, FCI SCHUYLKILL,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of
findings and recommendations regarding disposition pursuant to
28 U.S.C. § 636(b)(1)(B).
Magistrate Judge Tinsley submitted to
the court his Findings and Recommendation (“PF&R”) on August 23,
2023, in which he recommended that the district court deny
plaintiff’s petition under 28 U.S.C. § 2241 and dismiss 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
Tinsley’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.
889 F.2d 1363 (4th Cir. 1989).
Snyder v. Ridenour,
Case 1:20-cv-00440 Document 8 Filed 09/28/23 Page 2 of 3 PageID #: 42
The court granted Clary’s request for additional time to
file objections to the PF&R, giving him until September 22,
2023, to do so.
The parties failed to file any objections to the
Magistrate Judge's Findings and Recommendation within the
requisite time period.
Having reviewed the Findings and
Recommendation filed by Magistrate Judge Tinsley, the court
adopts the findings and recommendations contained therein.
Accordingly, the court hereby DENIES plaintiff’s petition under
28 U.S.C. § 2241, DISMISSES this case, 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.
court DENIES a certificate of appealability.
Accordingly, the
Case 1:20-cv-00440 Document 8 Filed 09/28/23 Page 3 of 3 PageID #: 43
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 28th day of September, 2023.
ENTER:
David A. Faber
Senior United States District Judge
3
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