McKelvey v. Leonard

Filing 7

MEMORANDUM OPINION & ORDER accepting and incorporating the 6 Proposed Findings and Recommendation by Magistrate Judge; directing judgment consistent with the findings and recommendations; and denying the plaintiff's 1 Motion/Petition for Writ of Habeas Corpus. The court concludes that the governing standard is not satisfied in this instance; the court DENIES a certificate of appealability. Signed by Judge Joseph R. Goodwin on 1/10/2017. (cc: petitioner, pro se; counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JAMEL MCKELVEY,
Petitioner,
v.

CIVIL ACTION NO. 2:16-cv-09900

ANTHONY K. LEONARD,
Respondent.

MEMORANDUM OPINION & ORDER
This action was referred to the Honorable Dwane L. Tinsley, United States
Magistrate Judge, for submission to this court of proposed findings of fact and
recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate
Judge has submitted findings of fact and has recommended that the court deny the
petitioner’s Motion/Petition for a Writ of Habeas Corpus [ECF No. 1] in its entirety
and dismiss this civil action from the docket of the court. Prop. Finds. & Rec. [ECF
No. 6]. Neither party has filed objections to the Magistrate Judge’s findings and
recommendations.
A district court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(C). This court is not, however, required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate judge

as to those portions of the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). The parties have not filed
objections in this case. The court has reviewed the Magistrate Judge’s findings of fact
and recommendations and finds no clear error on the face of the record. Therefore,
the court ACCEPTS and INCORPORATES herein the findings and recommendation
of the Magistrate Judge and ORDERS judgment consistent with the findings and
recommendations. The court DENIES the plaintiff’s Motion/Petition for Writ of
Habeas Corpus [ECF No. 1].
In ruling on the petitioner’s 2241 petition, the court has additionally
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.” Id. § 2253(c)(2). 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 court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.

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ENTER:

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January 10, 2017