Diggs v. Batts, No. 1:2010cv01082 - Document 6 (S.D.W. Va. 2013)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 4 Proposed Findings and Recommendation by Magistrate Judge VanDervort; DENIES the 1 APPLICATION to Proceed without Prepayment of Fees or Costs filed by Alissa Renee Diggs; DISMISSES petition er's 2 petition and DENIES a certificate of appealability. The Clerk is further directed to remove this case from the court's active docket. Signed by Judge David A. Faber on 8/19/2013. (cc: petitioner, pro se and counsel of record) (mjp)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD ALISSA DIGGS, Petitioner, v. CIVIL ACTION NO. 1:10-01082 MYRON L. BATTS, Respondent. MEMORANDUM OPINION AND ORDER By Standing Order, on September 7, 2010, this action was referred to United States Magistrate Judge R. Clarke VanDervort for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Doc. No. 3. Magistrate Judge VanDervort submitted to the court his Proposed Findings and Recommendation (PF&R) on July 29, 2013, in which he recommended that the District Court dismiss petitioner s petition for writ of habeas corpus under 28 U.S.C. § 2241 (Doc. No. 2), deny the motion to proceed without prepayment of fees or costs (Doc. No. 1) and remove this matter from the court s docket. See Doc. No. 4. In accordance with 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, within which to file any objections to Magistrate Judge VanDervort s PF&R. failure of any party to file such objections constitutes a The waiver of such party s right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). The parties failed to file any objections to Magistrate Judge VanDervort s PF&R within the seventeen-day period. Having reviewed the PF&R, the court adopts the findings and recommendations therein. Accordingly, the court DISMISSES petitioner s petition (Doc. No. 2) and DENIES her motion to proceed without prepayment of fees or costs. (Doc. No. 1). Additionally, the court has considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A certificate will not be granted unless there is a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The standard is satisfied only upon 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. court DENIES a certificate of appealability. 2 Accordingly, the The Clerk is directed to forward a copy of this Memorandum Opinion and Order to petitioner, pro se, and counsel of record. The Clerk is further directed to remove this case from the court s active docket. IT IS SO ORDERED this 19th day of August, 2013. ENTER: David A. Faber Senior United States District Judge 3

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