Head v. Batts, No. 1:2010cv00155 - Document 8 (S.D.W. Va. 2012)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 7 Proposed Findings and Recommendation by Magistrate Judge VanDervort; DENIES AS MOOT 3 Application to Proceed without Prepayment of Fees or Costs filed by Theresa Head, DISMISSES 1 petit ioner's application under 28 U.S.C. Section 2241 and directs the Clerk to remove this case from the court's active docket. The court DENIES a certificate of appealability. Signed by Judge David A. Faber on 11/14/2012. (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 THERESA HEAD, Petitioner, v. CIVIL ACTION NO. 1:10-0155 MYRON L. BATTS, Warden, Respondent. MEMORANDUM OPINION AND ORDER By Standing Order, 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 Findings and Recommendation on October 10, 2012, 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. 7). 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. (4th Cir. 1989). Snyder v. Ridenour, 889 F.2d 1363 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 DENIES AS MOOT petitioner s Application to Proceed Without Prepayment of Fees (Doc. No. 3), DISMISSES petitioner s application under 28 U.S.C. § 2241, (Doc. No. 1) 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. Accordingly, the court DENIES a certificate of appealability. 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 14th day of November, 2012. ENTER: David A. Faber Senior United States District Judge

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