Smith v. Young

Filing 17

MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates the findings and recommendation of the Magistrate Judge as contained in the 14 Proposed Findings and Recommendation and ORDERS that Respondent's 11 Motion to Dismiss be GRANTE D; the Petitioner's 1 Petition for a Writ of Habeas Corpus Under 28 U.S.C. Section 2241 be DENIED; the Petitioner's request for an evidentiary hearing (as referenced in Document 13) be DENIED; and that this action be DISMISSED WITH PREJUDICE and REMOVED from the Court's docket. Signed by Judge Irene C. Berger on 4/20/2017. (cc: USMJ Eifert; attys; any unrepresented party) (msa)

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

WALTER ELLIOTT SMITH, II,
Petitioner,
v.

CIVIL ACTION NO. 5:16-cv-07428

D. L. YOUNG, Warden,
Respondent.

MEMORANDUM OPINION AND ORDER
On July 20, 2016, the Petitioner, acting pro-se, filed his Petition for a Writ of Habeas Corpus
Under 28 U.S.C. § 2241 (Document 1). On October 11, 2016, Respondent’s Motion to Dismiss
(Document 11) was filed. The Petitioner filed his Response to Respondent’s Motion to Dismiss
(Document 13) on October 19, 2016, wherein he requests an evidentiary hearing and denial of the
dispositive motion.
By Standing Order (Document 5) entered on August 10, 2016, this action was referred to the
Honorable Cheryl A. Eifert, 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 March 8, 2017,
the Magistrate Judge submitted a Proposed Findings and Recommendation (Document 14) wherein it is
recommended that: the Respondent’s Motion to Dismiss (Document 11) be granted; the Petitioner’s
Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Document 1) be denied; the Petitioner’s
request for an evidentiary hearing (as referenced in Document 13) be denied; and that this action be
dismissed with prejudice and removed from the Court’s docket.
1

Objections to the Magistrate Judge=s Proposed Findings and Recommendation were originally
due on March 27, 2017. On motion of the Petitioner, the Court extended the objection deadline to April
17, 2017. As of April 19, 2017, neither party has 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 Respondent’s Motion to Dismiss (Document 11) be GRANTED; the Petitioner’s Petition for a Writ
of Habeas Corpus Under 28 U.S.C. § 2241 (Document 1) be DENIED; the Petitioner’s request for an
evidentiary hearing (as referenced in Document 13) be DENIED; and that this action be DISMISSED
WITH PREJUDICE and REMOVED from the Court’s docket.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge Eifert,
counsel of record, and any unrepresented party.
ENTER:

2

April 20, 2017