Nelson v. Johnson

Filing 21

FINAL ORDER adopting and approving findings and recommendations set forth in 18 Report and Recommendations; denying and dismissing the petition; directing that judgment be entered in favor of respondent; noting appeal procedures; declining to issue certificate of appealability. Signed by District Judge Jerome B. Friedman and filed on 4/27/09. Copies ECF to counsel; mailed to petitioner 4/28/09.(mwin, )

UNITED STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OP VIRGINIA Norfolk Division

FILED
APR 2 7 2009
CLERK, U.S. DISTRICT COURT
NORFOLK. VA

RICKY DONNELL NELSON,

#312831,

Petitioner,
v. ACTION NO. 2:08cv349

GENE M.

JOHNSON,

Director of

the

Virginia Department of Corrections,
Respondent.

FINAL

ORDER

This matter was
corpus under 28 U.S.C.

initiated by petition
§ 2254.

for a writ

of habeas

The petition alleges violation of

federal rights pertaining to Petitioner's conviction on March 10,

2003, in the Circuit Court of the City of Fr eder i cksburg, Virginia, for distribution or possession with intent to sell cocaine,
result of which he was sentenced to serve five (5) years in

as a
the

Virginia penal system.

The matter was
pursuant to

referred to a United States Magistrate Judge
of 28 U.S.C. § 636{b)(l)(B) and (C) ,

the provisions

Rule 72(b)

of the Federal Rules of Civil Procedure and Rule 72 of

the

Rules

of

the

United

States

District

Court

for

the

Eastern

District of Virginia for report and recommendation.

The report of

the Magistrate Judge (Magistrate Judge's Report) was filed on March
31, 2009, denying Petitioner's motion for an evidentiary hearing

and

recommending
each
to

dismissal
was

of

the
of

petition.1
his right

By
to

copy
file
made

of

the

report,

party
the

advised
and

written
by the

objections

findings

recommendations

magistrate Petitioner's
Report

judge.

On

April to the

10,

2009,

the

Court

received Judge's
from

Objections

United

States

Magistrate

and Recommendations.

The Court

received no

response

Respondent.

The

Court,

having

reviewed

the

record

and

examined

the

objections filed by Petitioner to the Magistrate Judge's report,2
and having made de novo findings with respect to the portions

objected

to,

does set

hereby forth

ADOPT in the

AND

APPROVE of
and

the the
it

findings United
is,

and

recommendations
Magistrate Judge

report
2009,

States

filed

on March

31,

therefore,

ORDERED that the petition be DENIED AND DISMISSED and that judgment

1 The Magistrate Judge's Report recommended dismissal of the petition because Claims 1 and 4 were not cognizable, Claims 2 and 5 were procedurally defaulted, and Claim 3 was without merit.
2 Petitioner makes three clear objections. Regarding the

first objection,

that the Magistrate Judge misconstrued the grounds

Petitioner stated in Claims 1 and 4, a close reading of the petition finds this objection to be without merit. Second, Petitioner objects to the Magistrate Judge recommending dismissal of Claim 3 because Petitioner believes the recommendation is based on an unreasonable determination of the facts in the state court proceeding at trial and on direct appeal. Petitioner's objection is without merit because it misunderstands the standard stated in 28 U.S.C. § 2254{d). Third, Petitioner argues that Claims 2 and 5
are not procedurally defaulted; these arguments are also without merit. Because Petitioner's Claims 2 and 5 are procedurally defaulted, the Report and Recommendation did not address the merits of Petitioner's claims, and the Court sees no reason to do so here.

be entered in favor of Respondent.

Petitioner may appeal this final order by filing

from the judgment entered pursuant a written notice of appeal with

to the

Clerk of this Court, Norfolk,

United States Courthouse, within thirty {30)

600 Granby Street, from the date of "a

Virginia 23510,

days

entry of such judgment.

Petitioner has

failed to demonstrate

substantial Therefore, of

showing the Court,

of

the

denial

of

a

constitutional

right."

pursuant to Rule 22(b) declines v. to

of the Federal Rules a certificate U.S. 322, of

Appellate

Procedure,

issue 537

appealability.
(2003).

See Miller-El

Cockrell.

335-36

The Clerk shall mail a copy of this Final Order to Petitioner
and to counsel of record for Respondent.
M

Jerome B. Friedman

United States District Judga
UNITED STATES DISTRICT JUDGE

Norfolk,

Virginia

April ^"* , 2009