Parks v. Napier

Filing 11

MEMORANDUM OPINION AND ORDER Because no case or controversy presently exists in this case, the court hereby GRANTS the 10 MOTION by A. W. Napier to Dismiss as moot, DISMISSES as moot plaintiff's 1 petition under 28 U.S.C. § 2241 for a writ of habeas corpus, and directs the Clerk to remove this case from the court's active docket; additionally DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 6/3/2024. (cc: counsel of record; unrepresented parties) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
DONNA N. PARKS,
Plaintiff,
v.

CIVIL ACTION NO. 1:21-00610

A.W. NAPIER,
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 on May 6, 2022, in which she recommended
that the district court deny plaintiff’s petition under 28 U.S.C. §
2241 for a writ of habeas corpus, grant defendant’s request for
dismissal, and dismiss this action with prejudice 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).

filed objections to the PF&R.

No party

However, on November 15, 2023, given

plaintiff’s release from custody, the defendant filed a motion to
dismiss the petition as moot.

See ECF No. 10.

Dismissal of plaintiff’s application as moot is appropriate
because plaintiff has already been released from her term of
incarceration.

See Spencer v. Kemna, 523 U.S. 1, 7 (1998); see also

Wallace v. Jarvis, 423 F. App’x 328, 2011 WL 1355195, *1 (4th Cir.
Apr. 11, 2011) (“While Wallace challenges the calculation of his
release date, he has been released from custody, and he does not allege
any collateral consequences that would warrant relief.”); Evora v.
Johnson, Civil Action No. 3:09CV91-HEH, 2009 WL 1437592, *1 (E.D. Va.
May 21, 2009) (dismissing as moot habeas petition where, having been
released from custody, petitioner did not “attempt to demonstrate that
the allegedly incorrect calculation [of time he was required to serve]
inflicted any collateral consequences upon him”).
Accordingly, because no case or controversy presently exists
in this case, the court hereby GRANTS the motion to dismiss petition
as moot, DISMISSES as moot plaintiff’s petition under 28 U.S.C. § 2241
for a writ of habeas corpus, 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.”

28 U.S.C. § 2253(c)(2).

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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 send copies of this Memorandum Opinion
and Order to counsel of record and unrepresented parties.
IT IS SO ORDERED this 3rd day of June, 2024.
ENTER:
David A. Faber
Senior United States District Judge

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