Holmes v. Hogsten, No. 1:2012cv00147 - Document 12 (S.D.W. Va. 2013)
Court Description: MEMORANDUM OPINION AND ORDER: The court ADOPTS the 11 Proposed Findings and Recommendation by Magistrate Judge VanDervort; DISMISSES Petitioner's 1 & 4 Section 2241 Application and directs the Clerk to remove this case from the court's active docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 4/30/2013. (cc: Petitioner, Pro Se and counsel of record) (arb)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD ANTHONY HOLMES, Petitioner, v. CIVIL ACTION NO. 1:12-00147 KAREN HOGSTEN, Warden, Respondent. MEMORANDUM OPINION AND ORDER By Standing Order, on January 23, 2012, 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). Magistrate Judge VanDervort submitted to the court his Proposed Findings and Recommendation (PF&R) on April 5, 2013, in which he recommended that the District Court dismiss petitioner s application under 28 U.S.C. § 2241 and remove this matter from the court s docket. Doc. No. 11. 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 Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party s right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). 1 The parties failed to file any objections to Magistrate Judge VanDervort s Findings and Recommendation within the seventeen-day period. Having reviewed the Findings and Recommendation filed by Magistrate Judge VanDervort, the court adopts the findings and recommendations therein. Accordingly, the court ADOPTS Magistrate Judge VanDervort s PF&R, DISMISSES petitioner s application under 28 U.S.C. § 2241, (Doc. Nos. 1 & 4), and directs the Clerk to remove this case from the court s active docket. 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. IT IS SO ORDERED this 30th day of April, 2013. ENTER: David A. Faber Senior United States District Judge 3
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