Brattain v. United States of America

Filing 63

MEMORANDUM OPINION AND ORDER as to Todd Andrew Brattain; adopting 62 Proposed Findings and Recommendations; dismissing 54 MOTION to Vacate, Set Aside or Correct Sentence (2255); the Clerk is directed to remove this case from the Court's active docket; denying a certificate of appealability. Signed by Judge David A. Faber on 3/27/2017. (cc: attys; any unrepresented party) (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
TODD ANDREW BRATTAIN,
Plaintiff,
v.

CIVIL ACTION NO. 2:16-05667
(Criminal No. 2:07-00093)

UNITED STATES OF AMERICA,
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 recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

Magistrate Judge Eifert submitted to the

court her Findings and Recommendation on January 18, 2017, in
which she recommended that the court dismiss plaintiff’s
emergency motion under 28 U.S.C. § 2255 and remove this case from
the court’s active docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days and 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 within the time allowed 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).
Neither party filed any objections to the Magistrate
Judge's Findings and Recommendations within the requisite time

period.

Accordingly, the court adopts the Findings and

Recommendations of Magistrate Judge Eifert as follows:
1.

Plaintiff’s emergency motion under 28 U.S.C. §
2255 is DISMISSED; and

2.

The Clerk is directed 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 further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 27th of March, 2017.
ENTER:

2

David A. Faber
Senior United States District Judge