Hidalgo v. Rokosky et al

Filing 15

MEMORANDUM OPINION AND ORDER adopting the 13 Proposed Findings and Recommendation by Magistrate Judge, granting 10 MOTION by Lefever, Rokosky to Dismiss re: 1 Petition and directing the Clerk to dismiss this case from the court's active docket; additionally denying a certificate of appealability. Signed by Senior Judge David A. Faber on 9/24/2024. (cc: plaintiff; counsel of record) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JOSIEL HIDALGO HIDALGO,
Plaintiff,
v.

CIVIL ACTION NO. 1:23-00033

WARDEN ROKOSKY, et al.,
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 July
12, 2024, in which he recommended that the district court grant
defendant’s motion to dismiss plaintiff’s petition for a writ of
habeas corpus pursuant to 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
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.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Snyder v.

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 for a writ of habeas corpus
pursuant to U.S.C. § 2241 and directs the Clerk to dismiss 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.

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Accordingly, the

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 24th day of September, 2024.
ENTER:

David A. Faber
Senior United States District Judge

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