Harrelson v. Berkebile
Filing
19
MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommndation of the Magistrate Judge as contained in the 17 Proposed Findings and Recommendation, and Directs that the Petitioner's 9 Motion to Proce ed Without Filing Fees be DENIED, the Petitioner's 15 Motion for Summary Judgment be DENIED, the Petitioner's 1 and 4 Section 2241 Application be DISMISSED, and that this matter be REMOVED from the Court's docket. The Court denies a certificate of appealability. Signed by Judge Irene C. Berger on 4/21/2011. (cc: attys; any unrepresented party) (mls) Modified on 4/22/2011 to add additional text (cds).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
ANTHONY T. HARRELSON,
Petitioner,
v.
CIVIL ACTION NO. 5:10-cv-00441
DAVID BERKEBILE,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Petitioner’s claim filed pursuant to 28 U.S.C. § 2241 (Document
Nos. 1 and 4.)
By Standing Order (Document No. 2) entered on April 2, 2010, 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. On
December 3, 2010, the Magistrate Judge submitted Proposed Findings and Recommendation
(Document No. 17) wherein it is recommended that this Court deny the Petitioner’s Motion to Proceed
Without Filing Fees, deny the Petitioner’s Motion for Summary Judgment, dismiss the Petitioner’s
Section 2241 Application, and remove this matter from the Court’s docket.
Neither party has 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 ORDERS that
the Petitioner’s Motion to Proceed Without Filing Fees (Document No. 9) be DENIED, the Petitioner’s
Motion for Summary Judgment (Document No. 15) be DENIED, the Petitioner’s Section 2241
Application (Document Nos. 1 and 4) be DISMISSED, and this matter be REMOVED from the
Court’s docket.
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 certified copy of this Order to Magistrate Judge
VanDervort, counsel of record, and any unrepresented party.
ENTER:
2
April 21, 2011
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