Sears v. Berkebile

Full title: RICCO SEARS, Petitioner, v. D. BERKEBILE, Respondent

Court: United States District Court, S.D. West Virginia, Beckley Division

Date published: Apr 5, 2010

CIVIL ACTION NO. 5:09-cv-00246 (S.D.W. Va. Apr. 5, 2010)

Opinion

CIVIL ACTION NO. 5:09-cv-00246.

April 5, 2010

MEMORANDUM OPINION AND ORDER

IRENE BERGER, District Judge

The Court has reviewed the Petitioner's March 19, 2009, Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket 1].

By Standing Order [Docket 3] entered on March 19, 2009, 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 February 26, 2010, the Magistrate Judge submitted Proposed Findings and Recommendation [Docket 9] wherein it is recommended that this Court dismiss the Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and remove this matter from the Court's docket. Neither party has timely filed objections to the Magistrate Judge's Proposed Findings and Recommendation.

Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the Proposed Findings and Recommendation. The Court ORDERS that the Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket 1] be DISMISSED and that 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.