Riggleman v. Stevens

Filing 7

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 6 Proposed Findings and Recommendation by the Magistrate Judge, and ORDERS that the Petitioner's 5 Motion for Voluntary Dismissal is GRANTED, the Petitioner's 1 Section 2241 Applica tion 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 3/12/2013. (cc: Magistrate Judge VanDervort; attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

ELISHA RIGGLEMAN,
Petitioner,
v.

CIVIL ACTION NO. 5:13-cv-02137

DEBBIE H. STEVENS,
Respondent.

MEMORANDUM OPINION AND ORDER
The Court has reviewed the Petitioner=s February 7, 2013 Application for Writ of Habeas
Corpus by a Person in Federal Custody under 28 U.S.C. ' 2241 (Document 1), and the Petitioner’s
Motion to Quash (Document 5), which has been construed as a Motion for Voluntary Dismissal.
By Standing Order (Document 2) entered on February 7, 2013, 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 20, 2013, the Magistrate Judge submitted a Proposed Findings and Recommendation
(Document 6) wherein it is recommended that this Court grant the Petitioner’s Motion for
Voluntary Dismissal (Document 5), dismiss the Petitioner’s Section 2241 Application (Document
1) without prejudice, and remove this matter from the Court’s docket.

Objections to the

Magistrate Judge=s Proposed Findings and Recommendation were due by February 11, 2013.

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 Motion for Voluntary Dismissal (Document
5) is GRANTED, the Petitioner’s Section 2241 Application (Document 1) 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

March 12, 2013