Holbrook v. Ballard, No. 2:2009cv01251 - Document 9 (S.D.W. Va. 2009)
Court Description: MEMORANDUM OPINION & ORDER accepting and incorporating the 8 Proposed Findings and Recommendation and orders judgment consistent with the findings and recommendation; the court DISMISSES this action without prejudice; the court DENIES a certificate of appealability. Signed by Judge Joseph R. Goodwin on 12/14/2009. (cc: petitioner; attys; any unrepresented parties) (taq)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION TEX G. HOLBROOK, II Plaintiff, v. CIVIL ACTION NO. 2:09-cv-01251 DAVID BALLARD, Defendant. MEMORANDUM OPINION & ORDER This action was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to this court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has submitted findings of fact and has recommended that the court DISMISS this civil action without prejudice for failure to exhaust available state remedies. Neither party has filed objections to the Magistrate Judge s findings and recommendation. The failure to object to a magistrate judge s report may be deemed a waiver of appeal of the substance of the report and the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). The court has reviewed the Magistrate Judge s findings of fact and recommendation and finds no clear error on the face of the record. Therefore, the court accepts and incorporates herein the findings and recommendation of the Magistrate Judge and orders judgment consistent with the findings and recommendation. The court DISMISSES this action without prejudice. The court has additionally 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. Id. § 2253(c)(2). 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 copies of this written opinion and order to all counsel of record and any unrepresented parties. ENTER: -2- December 14, 2009
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