Murray v. Ballard, No. 2:2013cv33493 - Document 7 (S.D.W. Va. 2014)

Court Description: ORDER accepting and incorporating the 6 Proposed Findings and Recommendations by Magistrate Judge, dismissing without prejudice petitioner's 1 LETTER-FORM PETITION FOR WRIT OF HABEAS CORPUS, denying petitioner's 2 Motion for Appointment of Counsel, and directing that this action be removed from the docket; denying a certificate of appealability. Signed by Judge Joseph R. Goodwin on 6/18/2014. (cc: petitioner; attys; any unrepresented party) (tmh)

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Murray v. Ballard Doc. 7 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION GARLAND MURRAY, Petitioner, v. CIVIL ACTION NO. 2:13-cv-33493 DAVID BALLARD, Respondent. ORDER This action was referred to the Honorable Dwane L. Tinsley, 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(b)(1)(B). The Magistrate Judge found that the petitioner has “wholly failed” to prosecute this action. The Magistrate Judge recommended that this court deny the petitioner’s Letter-Form Petition for a Writ of Habeas Corpus [Docket 1] and Motion for Appointment of Counsel [Docket 2] and dismiss this action for failure to prosecute. Neither party has filed objections to the Magistrate Judge’s findings and recommendations. A district court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C). This court is not, however, 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. See Thomas v. Arn, 474 U.S. 140, 150 (1985). As the parties have not filed objections in this case, the court accepts and incorporates herein the findings and Dockets.Justia.com recommendation of the Magistrate Judge and orders judgment consistent with the findings and recommendations. The court DISMISSES the Letter-Form Petition for a Writ of Habeas Corpus [Docket 1] without prejudice, DENIES the Motion for Appointment of Counsel [Docket 2], and DIRECTS this action to be removed from the docket. This court is required to determine if a certificate of appealability should issue. See 28 U.S.C. 2253(c). A certificate may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. A petitioner satisfies this standard where reasonable jurists could debate this court’s resolution of the petitioner’s claims. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). At this time, the petitioner has not satisfied this standard because he has not alleged any particular constitutional violation. Therefore, the court DENIES a certificate of appealability. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: 2 June 18, 2014

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