Barbati v. Ziegler
Filing
14
MEMORANDUM OPINION AND ORDER: the Court ADOPTS the 7 Proposed Findings and Recommendations by Magistrate Judge and ORDERS that the 1 Application to Proceed without Prepayment of Fees and Costs filed by Nicholas Barbati is DENIED, the 2 PET ITION for a Writ of Habeas Corpus Under 28 U.S.C. Section 2241 is DISMISSED WITHOUT PREJUDICE, and this matter is REMOVED from the Court's docket; the Court DENIES a certificate of appealability. Signed by Judge Irene C. Berger on 10/25/2012. (cc: Magistrate Judge VanDervort; attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
NICHOLAS BARBATI,
Petitioner,
v.
CIVIL ACTION NO. 5:12-cv-04267
JOEL ZIEGLER,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Petitioner=s Application to Proceed Without Prepayment of
Fees and Costs (Document 1) and Petition for a Writ of Habeas Corpus Under 28 U.S.C. ' 2241
(Document 2) filed on August 13, 2012.
By Standing Order (Document 4) entered on August 13, 2012, 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 September 5, 2012, the Magistrate Judge submitted his Proposed Findings and
Recommendation (Document 7) wherein it is recommended that this Court deny the Application to
Proceed Without Prepayment of Fees and Costs (Document 1), dismiss without prejudice the
Petition for a Writ of Habeas Corpus Under 28 U.S.C. ' 2241 (Document 2), and remove this
matter from the Court’s docket.
1
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 Application to Proceed Without Prepayment
of Fees and Costs (Document 1) is DENIED, the Petition for a Writ of Habeas Corpus Under 28
U.S.C. ' 2241 (Document 2) is DISMISSED WITHOUT PREJUDICE, and this matter is
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.
2
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:
3
October 25, 2012
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