Olalde v. Upton
MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the 20 Proposed Findings and Recommendation, and ORDERS that the Petitioner's 1 Petition for Wri t of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. Section 2241 be DENIED 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 3/18/2013. (cc: USMJ VanDervort; attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 5:11-cv-00802
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Petitioner=s November 15, 2010 Petition for Writ of Habeas
Corpus by a Person in Federal Custody under 28 U.S.C. ' 2241 (Document 1). The Petition was
originally filed in the United States District Court for the Eastern District of Texas, but was
subsequently transferred to this Court on October 20, 2011.
By Standing Order (Document 14) entered on October 27, 2011, 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 February 26, 2013, the Magistrate Judge submitted a Proposed Findings and Recommendation
(Document 20) wherein it is recommended that this Court deny the Petitioner’s Petition for Writ of
Habeas Corpus by a Person in Federal Custody under 28 U.S.C. ' 2241 and remove this matter
from the Court’s docket.
Objections to the Magistrate Judge=s Proposed Findings and
Recommendation were due by March 15, 2013.
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 Petition for Writ of Habeas Corpus by a
Person in Federal Custody under 28 U.S.C. ' 2241 (Document 1) be DENIED and that 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 Aa 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.
March 18, 2013
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