Portorreal v. Lefever

Filing 16

MEMORANDUM OPINION AND ORDER adopting the 14 Proposed Findings and Recommendation by Magistrate Judge; granting the 7 , 12 Motions by Warden Lefever to Dismiss; denying the 1 Petitions by Jose Pena Portorreal for Writ of Habeas Corpus (2241); dismissing these actions; and directing the Clerk to remove these cases from the court's active docket; additionally, denying a certificate of appealability. Signed by Senior Judge David A. Faber on 3/5/2025. (cc: plaintiff and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JOSE PENA PORTORREAL,
Plaintiff,
v.

CIVIL ACTION NOS. 1:23-00031
1:23-00171

WARDEN LEFEVER,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, these actions were 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 January 5,
2024, in which she recommended that the district court grant
defendant’s motions to dismiss, deny plaintiff’s petitions for a
writ of habeas corpus under 28 U.S.C. § 2241, dismiss these
cases, and remove these matters 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).
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 Eifert, the court
adopts the findings and recommendations contained therein.
Accordingly, the court hereby GRANTS defendant’s motions to
dismiss, DENIES plaintiff’s petitions for a writ of habeas
corpus under 28 U.S.C. § 2241, DISMISSES these actions, and
directs the Clerk to remove these cases 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.
IT IS SO ORDERED this 5th day of March, 2025.
ENTER:
David A. Faber
Senior United States District Judge

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