Riggleman v. Zeigler
Filing
16
MEMORANDUM OPINION AND ORDER: The Court ADOPTS the and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the 9 Proposed Findings and Recommendation, and ORDERS that Plaintiff/Petitioner's 1 Applicat ion Under 28 U.S.C. Section 2241 for Writ of Habeas Corpus be DENIED, and that these consolidated matters be DISMISSED and REMOVED from the Court's docket. Pursuant to the Court's aforesaid ruling, it is ORDERED that Plaintiff/Petitioner 039;s 8 Motion to Dismiss is DENIED as MOOT. Further, it is ORDERED that Plaintitt/Petitioner's 5 & 7 Motions for Appointment of Counsel are DENIED. The Court DENIES a certificate of appealability. Signed by Judge Irene C. Berger on 09/06/2011. (cc: USMJ VanDervort; attys; any unrepresented party) (mls)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
ELISHA RIGGLEMAN,
Plaintiff,
v.
CIVIL ACTION NO. 5:10-cv-01410
D. SNOW,
Defendant.
and
ELISHA RIGGLEMAN,
Petitioner,
v.
CIVIL ACTION NO. 5:11-cv-00373
JOEL ZEIGLER,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the two above-styled actions filed by Plaintiff/Petitioner alleging
violations of his constitutional rights. By Standing Order (Document 2 in 5:10-cv-1410; Document
2 in 5:11-cv-373), both actions were 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. By Order of June 10, 2011 (Document 7 in 5:10-cv-1410;
Document 6 in 5:11-cv-373), the two actions were consolidated, with Civil Action No. 5:11-cv-373
designated as the lead action.
On June 10, 2011, the Magistrate Judge submitted Proposed Findings and Recommendation
(Document 9) wherein it is recommended that this Court deny Plaintiff/Petitioner’s Application
Under 28 U.S.C. § 2241 for Writ of Habeas Corpus, dismiss these consolidated matters, and remove
them 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 Plaintiff/Petitioner’s Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus (Document
1) be DENIED, and that these consolidated matters be DISMISSED and REMOVED from the
Court’s docket.
Pursuant to the Court’s aforesaid ruling, it is ORDERED that Plaintiff/Petitioner’s motion
to dismiss (Document 8) is DENIED as MOOT.
Further, it is ORDERED that the
Plaintiff/Petitioner’s motions for appointment of counsel (Documents 5 & 7) are DENIED.
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.” 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.
2
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, to counsel of record and to any unrepresented party.
ENTER:
3
September 6, 2011
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?