Barbati v. Ziegler, No. 5:2012cv04267 - Document 14 (S.D.W. Va. 2012)

Court Description: MEMORANDUM OPINION AND ORDER: the Court ADOPTS the 7 Proposed Findings and Recommendations by Magistrate Judge and ORDERS that the 1 Application to Proceed without Prepayment of Fees and Costs filed by Nicholas Barbati is DENIED, the 2 PET ITION for a Writ of Habeas Corpus Under 28 U.S.C. Section 2241 is DISMISSED WITHOUT PREJUDICE, and this matter is REMOVED from the Court's docket; the Court DENIES a certificate of appealability. Signed by Judge Irene C. Berger on 10/25/2012. (cc: Magistrate Judge VanDervort; attys; any unrepresented party) (slr)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION NICHOLAS BARBATI, Petitioner, v. CIVIL ACTION NO. 5:12-cv-04267 JOEL ZIEGLER, Respondent. MEMORANDUM OPINION AND ORDER The Court has reviewed the Petitioner=s Application to Proceed Without Prepayment of Fees and Costs (Document 1) and Petition for a Writ of Habeas Corpus Under 28 U.S.C. ' 2241 (Document 2) filed on August 13, 2012. By Standing Order (Document 4) entered on August 13, 2012, 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 September 5, 2012, the Magistrate Judge submitted his Proposed Findings and Recommendation (Document 7) wherein it is recommended that this Court deny the Application to Proceed Without Prepayment of Fees and Costs (Document 1), dismiss without prejudice the Petition for a Writ of Habeas Corpus Under 28 U.S.C. ' 2241 (Document 2), 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 the Petitioner s Application to Proceed Without Prepayment of Fees and Costs (Document 1) is DENIED, the Petition for a Writ of Habeas Corpus Under 28 U.S.C. ' 2241 (Document 2) is DISMISSED WITHOUT PREJUDICE, and this 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 October 25, 2012

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