Perez-Ortega v. Masters et al, No. 1:2013cv28901 - Document 9 (S.D.W. Va. 2015)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 8 Proposed Findings and Recommendations of Magistrate Judge Cheryl A. Eifert; DENIES Petitioner's 1 Section 2241 Petition; DENIES his request for counsel and DIRECTS the Clerk to remove this case from the Court's docket. The Court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 10/21/2015. (cc: Petitioner, Pro Se and counsel of record) (arb)

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Perez-Ortega v. Masters et al Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD LEOPOLDO PEREZ-ORTEGA, Petitioner, v. Civil Action No: 1:13-28901 BART MASTERS, et al., Warden Respondents. MEMORANDUM OPINION AND ORDER By Standing Order, this matter was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendations regarding disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the court her Proposed Findings and Recommendation on September 18, 2015, in which she recommended that the district court deny petitioner’s petition for a writ of habeas corpus pursuant to § 2441, deny petitioner’s request for counsel, and remove this matter from the court’s docket. (Doc. No. 8). In accordance with the provisions of 28 U.S.C. § 636(b), petitioner was allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Eifert’s Findings and Recommendation. The failure to file such objections constitutes a waiver of the right to a de novo review 1 Dockets.Justia.com by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). Petitioner failed to file any objections to the Magistrate Judge’s Findings and Recommendation within the seventeen-day period. Having reviewed the Findings and Recommendation filed by Magistrate Judge Eifert, the court adopts the findings and recommendation contained therein. 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.” § 2253(c)(2). Id. 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 DENIES a certificate of appealability. The court hereby DENIES petitioner’s petition for a writ of habeas corpus, (Doc. No. 1), DENIES his request for counsel, and DIRECTS the Clerk to remove this case from the court’s docket. 2 The Clerk is further directed to forward a copy of this Memorandum Opinion and Order to petitioner, pro se. It is SO ORDERED this 21st day of October, 2015. ENTER: David A. Faber Senior United States District Judge 3

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