Constant v. Ziegler
Filing
8
MEMORANDUM OPINION AND ORDER: adopting the 6 Proposed Findings and Recommendation by Magistrate Judge; the Court ORDERS that the Petitioner's 1 Application Under 28 U.S.C. Section 2241 for Writ of Habeas Corpus By a Person in State or Federal Custody be DISMISSED without prejudice and that this action be REMOVED from the Court's docket; the Court DENIES a certificate of appealability. Signed by Judge Irene C. Berger on 7/19/2012. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
ANTWAN RICARDO CONSTANT,
Petitioner,
v.
CIVIL ACTION NO. 5:11-cv-01007
JOEL ZIEGLER,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Petitioner=s December 22, 2011 Application Under 28 U.S.C. '
2241 for Writ of Habeas Corpus By a Person in State or Federal Custody (Document 1).
By Standing Order (Document 3) entered on December 22, 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 June 28, 2012, the Magistrate Judge submitted Proposed Findings and Recommendation
(Document 6) wherein it is recommended that this Court dismiss the Petitioner’s Application
Under 28 U.S.C. ' 2241 for Writ of Habeas Corpus By a Person in State or Federal Custody
without prejudice 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
1
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 Application Under 28 U.S.C. ' 2241 for
Writ of Habeas Corpus By a Person in State or Federal Custody (Document 1) be DISMISSED
WITHOUT PREJUDICE, and that this action 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.
ENTER:
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July 19, 2012
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