Opinion
Civil Action 1:23-00222
01-24-2024
MASON BISHOP, Plaintiff, v. SHELBY SEARLS, Defendant.
MEMORANDUM OPINION AND ORDER
David A. Faber Senior United States District Judge
By Standing Order, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C.A. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the court her Findings and Recommendation on December 8, 2023, in which she recommended that the District Court grant defendant's motion to dismiss, deny plaintiff's motion to voluntarily withdraw his petition without prejudice, dismiss plaintiff's petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 with prejudice, and remove this matter from the court's docket.
In accordance with the provisions of 28 U.S.C.A. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Eifert's Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).
The parties failed to file any objections to the Magistrate Judge's Findings and Recommendation or any other materials within the seventeen-day period. Having reviewed the Findings and Recommendation filed by Magistrate Judge Eifert, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby GRANTS defendant's motion to dismiss, DENIES plaintiff's motion to voluntarily withdraw his petition without prejudice, DISMISSES plaintiff's petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 with prejudice, and directs the Clerk to remove this matter from the court's docket.
Additionally, the court has 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.” 28 U.S.C. § 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 further directed to forward a copy of this Memorandum Opinion and Order to plaintiff, pro se, and counsel of record.
IT IS SO ORDERED