Smith v. United States of America, No. 5:2009cv00999 - Document 13 (S.D.W. Va. 2011)

Court Description: MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATION: The Court ADOPTS and incorporates herein the findings of the Magistrate Judge as contained in the 11 Proposed Findings and Recommendation, and does hereby ORDER that Peti tioner's 7 Application to Proceed without Prepayment of Fees is DENIED and Petitioner's 1 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. Section 2241 and Challenge to Jurisdiction and Request to Dismiss Indictment is DISMISSED. The Court DENIES a certificate of appealability. Directing the Clerk to REMOVE this matter from the Court's docket. Signed by Judge Irene C. Berger on 09/07/2011. (cc: USMJ VanDervort; attys; any unrepresented party) (mls)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION JASON J. SMITH, Petitioner, v. CIVIL ACTION NO. 5:09-cv-00999 UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATION This action was referred to the Honorable R. Clarke VanDervort, 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). (Document No. 6.) On August 18, 2011, the assigned Magistrate Judge submitted his findings of fact (Document No. 11), wherein he recommends that the Court deny Petitioner s Application to Proceed Without Prepayment of Fees (Document No. 7) and dismiss Petitioner s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Challenge to Jurisdiction and Request to Dismiss Indictment (Document No. 1). In his PF&R, the Magistrate Judge also advised Petitioner that he could file objections to his recommendation. However, to date, Petitioner has not timely filed objections to the Magistrate Judge s Proposed Findings and Recommendation. The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review and the Petitioner s right to appeal this Court s Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the Proposed Findings and Recommendation, and does hereby ORDER that Petitioner s Application to Proceed Without Prepayment of Fees (Document No. 7) is DENIED and Petitioner s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Challenge to Jurisdiction and Request to Dismiss Indictment (Document No. 1) is DISMISSED. Further, the Court has also 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 REMOVE this matter from the Court s docket. The Court DIRECTS the Clerk to send a certified copy of this Memorandum Opinion and Order to Magistrate Judge VanDervort, counsel of record, and any unrepresented party. ENTER: 2 September 7, 2011

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