Smith v. United States of America
Filing
13
MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATION: The Court ADOPTS and incorporates herein the findings of the Magistrate Judge as contained in the 11 Proposed Findings and Recommendation, and does hereby ORDER that Peti tioner's 7 Application to Proceed without Prepayment of Fees is DENIED and Petitioner's 1 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. Section 2241 and Challenge to Jurisdiction and Request to Dismiss Indictment is DISMISSED. The Court DENIES a certificate of appealability. Directing the Clerk to REMOVE this matter from the Court's docket. Signed by Judge Irene C. Berger on 09/07/2011. (cc: USMJ VanDervort; attys; any unrepresented party) (mls)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
JASON J. SMITH,
Petitioner,
v.
CIVIL ACTION NO. 5:09-cv-00999
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
ADOPTING PROPOSED FINDINGS AND RECOMMENDATION
This action was referred to the Honorable R. Clarke VanDervort, 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). (Document No. 6.) On August 18, 2011, the assigned Magistrate
Judge submitted his findings of fact (Document No. 11), wherein he recommends that the Court deny
Petitioner’s Application to Proceed Without Prepayment of Fees (Document No. 7) and dismiss
Petitioner’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Challenge to
Jurisdiction and Request to Dismiss Indictment (Document No. 1).
In his PF&R, the Magistrate Judge also advised Petitioner that he could file objections to his
recommendation. However, to date, Petitioner has not timely filed objections to the Magistrate Judge’s
Proposed Findings and Recommendation. The Court is not 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). Failure to file timely objections constitutes a waiver of de novo review and the Petitioner’s
right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation of
the Magistrate Judge as contained in the Proposed Findings and Recommendation, and does hereby
ORDER that Petitioner’s Application to Proceed Without Prepayment of Fees (Document No. 7) is
DENIED and Petitioner’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and
Challenge to Jurisdiction and Request to Dismiss Indictment (Document No. 1) is DISMISSED.
Further, the Court has also 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 Clerk is directed to REMOVE this matter from the Court’s docket.
The Court DIRECTS the Clerk to send a certified copy of this Memorandum Opinion and
Order to Magistrate Judge VanDervort, counsel of record, and any unrepresented party.
ENTER:
2
September 7, 2011
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