Berry v. Reherman, No. 1:2020cv00294 - Document 22 (S.D.W. Va. 2021)

Court Description: MEMORANDUM OPINION AND ORDER adopting the 20 Proposed Findings and Recommendation by Magistrate Judge, denying plaintiff's 1 Emergency Petition for Writ of Habeas Corpus (2241), granting defendant's 21 MOTION to Dismiss, and directing the Clerk to remove this case from the court's active docket. The court denies a certificate of appealability. Signed by Senior Judge David A. Faber on 2/17/2021. (cc: plaintiff; counsel of record) (arb)
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Berry v. Reherman Doc. 22 Case 1:20-cv-00294 Document 22 Filed 02/17/21 Page 1 of 3 PageID #: 147 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD SALLY A. BERRY, Plaintiff, v. CIVIL ACTION NO. 1:20-00294 M.E. REHERMAN, Warden, Defendant. MEMORANDUM OPINION AND ORDER By Standing Order, this action 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 Findings and Recommendation (“PF&R”) on October 16, 2020, in which she recommended that the district court deny plaintiff’s emergency petition under 28 U.S.C. § 2241, and remove this matter from the court’s docket. 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 of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). Objections were due by October 30, 2020. filed objections within the required time period. Neither party However, on Case 1:20-cv-00294 Document 22 Filed 02/17/21 Page 2 of 3 PageID #: 148 January 6, 2021, defendant filed a motion to dismiss arguing that the petition should be dismissed as moot because plaintiff was placed on home confinement on October 21, 2020. See ECF No. 21. Having reviewed the Findings and Recommendation filed by Magistrate Judge Eifert, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby DENIES plaintiff’s emergency petition under 28 U.S.C. § 2241, GRANTS the motion to dismiss, 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.” 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. 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 plaintiff and counsel of record. 2 Case 1:20-cv-00294 Document 22 Filed 02/17/21 Page 3 of 3 PageID #: 149 IT IS SO ORDERED this 17th day of February, 2021. ENTER: David A. Faber Senior United States District Judge 3