King v. Berkebile, No. 5:2010cv00080 - Document 16 (S.D.W. Va. 2012)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 15 Proposed Findings and Recommendation by Magistrate Judge, and ORDERS that the 1 Petitioner's Application for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. Section 2241 be DISMISSED without prejudice, and that this action be REMOVED from the Court's docket; the Court DENIES a certificate of appealability. Signed by Judge Irene C. Berger on 11/16/2012. (cc: attys; any unrepresented party) (slr)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION DYWAN KING Petitioner, v. CIVIL ACTION NO. 5:10-cv-00080 DAVID BERKEBILE, Respondent. MEMORANDUM OPINION AND ORDER The Court has reviewed the Petitioner=s January 27, 2010, Application for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. ' 2241 (Document 1). By Standing Order (Document 2) entered on January 27, 2010, 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 October 25, 2012, the Magistrate Judge submitted his Proposed Findings and Recommendation (Document 15) wherein it is recommended that this Court 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 action from the Court s docket. 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 1 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 the Petitioner s Application for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. ' 2241 (Document 1) be DISMISSED without prejudice, and that this action be 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. 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: 2 November 16, 2012

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