Harrelson v. Berkebile, No. 5:2010cv00441 - Document 19 (S.D.W. Va. 2011)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommndation of the Magistrate Judge as contained in the 17 Proposed Findings and Recommendation, and Directs that the Petitioner's 9 Motion to Proce ed Without Filing Fees be DENIED, the Petitioner's 15 Motion for Summary Judgment be DENIED, the Petitioner's 1 and 4 Section 2241 Application be DISMISSED, and that this matter be REMOVED from the Court's docket. The Court denies a certificate of appealability. Signed by Judge Irene C. Berger on 4/21/2011. (cc: attys; any unrepresented party) (mls) Modified on 4/22/2011 to add additional text (cds).

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION ANTHONY T. HARRELSON, Petitioner, v. CIVIL ACTION NO. 5:10-cv-00441 DAVID BERKEBILE, Respondent. MEMORANDUM OPINION AND ORDER The Court has reviewed the Petitioner s claim filed pursuant to 28 U.S.C. § 2241 (Document Nos. 1 and 4.) By Standing Order (Document No. 2) entered on April 2, 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 December 3, 2010, the Magistrate Judge submitted Proposed Findings and Recommendation (Document No. 17) wherein it is recommended that this Court deny the Petitioner s Motion to Proceed Without Filing Fees, deny the Petitioner s Motion for Summary Judgment, dismiss the Petitioner s Section 2241 Application, and remove this matter 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 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 Motion to Proceed Without Filing Fees (Document No. 9) be DENIED, the Petitioner s Motion for Summary Judgment (Document No. 15) be DENIED, the Petitioner s Section 2241 Application (Document Nos. 1 and 4) be DISMISSED, and this matter 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 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 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 April 21, 2011

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