Silver v. United States of America et al, No. 5:2009cv01222 - Document 20 (S.D.W. Va. 2012)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the 19 Proposed Findings and Recommendation, and ORDERS that Petitioner's 1 Application to Proceed In Forma Pauperis is DENIED, the Petitioner's 2 Application for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. Section 2241 is DISMISSED, and the matter is REMOVED from the Court's docket. The Court DENIES a certificate of appealability. Signed by Judge Irene C. Berger on 11/28/2012. (cc: USMJ VanDervort; attys; any unrepresented party) (msa)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION LEVERNE SILVER, Petitioner, v. CIVIL ACTION NO. 5:09-cv-01222 UNITED STATES OF AMERICA and DAVID BERKEBILE, Respondents. MEMORANDUM OPINION AND ORDER The Court has reviewed the Petitioner=s Application to Proceed in Forma Pauperis (Document 1) and Application for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. ' 2241 (Document 2) filed on November 6, 2009. By Standing Order (Document 4) entered on November 6, 2019, 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. On November 1, 2012, the Magistrate Judge submitted a Proposed Findings and Recommendation (Document 19) wherein it is recommended that this Court deny the Petitioner=s Application to Proceed in Forma Pauperis, dismiss the Petitioner s Application for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. ' 2241, and remove this matter from the Court s docket. 1 Neither party has 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 ORDERS that Petitioner=s Application to Proceed in Forma Pauperis (Document 1) is DENIED, the Petitioner s Application for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. ' 2241 (Document 2) is DISMISSED, and the matter is REMOVED from the Court s docket. 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 Aa 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. 2 The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge VanDervort, counsel of record, and any unrepresented party. ENTER: 3 November 28, 2012

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.