Darden v. Rickard et al, No. 1:2015cv07691 - Document 12 (S.D.W. Va. 2015)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 11 Proposed Findings and Recommendation by Magistrate Judge Cheryl A. Eifert, DENIES Petitioner's 1 Section 2241 Petition 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 12/30/2015. (cc: Petitioner, Pro Se and counsel of record) (arb)

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Darden v. Rickard et al Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD PATRICIA DARDEN, Petitioner, v. Civil Action No: 1:15-07691 BARBARA RICKARD, Warden, et al. Respondents. MEMORANDUM OPINION AND ORDER Pending before the court is petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1). 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). (Doc. No. 4). Magistrate Judge Eifert submitted to the court her Proposed Findings and Recommendation on November 18, 2015, in which she recommended that the district court dismiss petitioner’s petition for a writ of habeas corpus and remove this matter from the court’s docket. (Doc. No. 11 at 4). In accordance with the provisions of 28 U.S.C. § 636(b), the parties were 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 1 Dockets.Justia.com objections constitutes a waiver of the right to a de novo review 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 ADOPTS the factual and legal analysis contained within the PF&R, DENIES petitioner’s petition for a 2 writ of habeas corpus, (Doc. No. 1), and DIRECTS the Clerk to remove this case from the court’s docket. The Clerk is further directed to forward a copy of this Memorandum Opinion and Order to counsel of record and petitioner, pro se. It is SO ORDERED this 30th day of December, 2015. ENTER: David A. Faber Senior United States District Judge 3

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