Joiner v. Berkebile, No. 5:2010cv00400 - Document 9 (S.D.W. Va. 2010)

Court Description: ORDER: adopting the 8 Proposed Findings and Recommendations by Magistrate Judge; dismissing Petitioner's 1 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. Section 2241; removing this matter from the Court's docket; denying a certificate of appealability. Signed by Judge Irene C. Berger on 12/14/2010. (cc: attys; any unrepresented party) (slr)

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Joiner v. Berkebile Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION DANNY JOINER, Petitioner, v. CIVIL ACTION NO. 5:10-cv-00400 DAVID BERKEBILE, Respondent. ORDER The Court has reviewed Petitioner's Petition For Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket 1]. By Standing Order [Docket 3] entered on March 26, 2010, 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 November 19, 2010, the Magistrate Judge submitted Proposed Findings and Recommendation (“PF & R”) [Docket 8] wherein it is recommended that this Court dismiss the Petitioner's Petition For Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and remove this matter from the Court's docket. 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). In addition, failure to file timely objections constitutes a waiver of de novo review and Petitioner's right to appeal this Court's order. See Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989); United States v. Dockets.Justia.com Schronce, 727 F.2d 91, 94 (4th Cir.1984). Objections to the PF & R were due by December 6, 2010, and Petitioner has failed to file timely objections. Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the Proposed Findings and Recommendation [Docket 8]. The Court ORDERS that Petitioner's Petition For Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket 1] be DISMISSED. The Court further ORDERS that this matter be 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 “a 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 ORDERS that a certificate of appealability be DENIED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any unrepresented party. ENTER: 2 December 14, 2010

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