Bugg v. Rickards, No. 1:2017cv03601 - Document 13 (S.D.W. Va. 2017)

Court Description: MEMORANDUM OPINION AND ORDER: adopting the factual and legal analysis contained with the 12 Amended PF&R; dismissing this matter to the extent petitioner is challenging (1) the Board of Parole's calculation of his criminal sentence and (2) to the extent petitioner asserts a claim based upon U.S.S.G. Section 5G1.3(b); construing petitioner's 1 Writ of Habeas Corpus as a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. Section 2255; transferring the motion to the United States District Court for the Eastern District of Kentucky; denying a certificate of appealability. Signed by Judge David A. Faber on 12/5/2017. (cc: counsel of record; petitioner - pro se) (btm)

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Bugg v. Rickards Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD STEPHEN TROY BUGG, Petitioner, v. CIVIL ACTION NO. 1:17-03601 BARBARA RICKARD, Warden Respondent. MEMORANDUM OPINION AND ORDER Pending before the court is petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. By Standing Order, the matter was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of proposed findings and recommendations (“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). On September 1, 2017, the magistrate judge submitted his Amended PF&R, in which he recommended that the district court DISMISS in part and CONSTRUE and TRANSFER in part. ECF No. 12. 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 Aboulhosn’s Findings and Recommendation. The failure to file such objections constitutes a waiver of the right to a de novo review 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 PF&R within the seventeen-day period. Having reviewed the Amended PF&R, the court adopts the findings and recommendation contained therein. The court hereby ADOPTS the factual and legal analysis contained with the Amended PF&R, (ECF No. 12), DISMISSES this matter to the extent petitioner is challenging (1) the Board of Parole’s calculation of his criminal sentence and (2) to the extent petitioner asserts a claim based upon U.S.S.G. § 5G1.3(b), CONSTRUES petitioner’s writ of habeas corpus as a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, and TRANSFERS the motion to the United States District Court for the Eastern District of Kentucky. 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). 28 U.S.C. § 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. 2 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 further directed to forward a copy of this Memorandum Opinion and Order to counsel of records and petitioner, pro se. It is SO ORDERED this 5th day of December, 2017. ENTER: David A. Faber Senior United States District Judge 3

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