Parker v. Johnson

Filing 20

FINAL ORDER ADOPTING REPORT AND RECOMMENDATIONS for 12 Motion to Dismiss filed by Gene M. Johnson, 15 Report and Recommendations; Ordering that the petition be Denied and Dismissed on the basis of petitioner's procedural defaults in the stat e system and on the merits and that judgment be entered in respondent's favor; noting appeal procedures and declining to issue a certificate of appealability. Signed by District Judge Robert G. Doumar and filed on 4/29/09. Copy mailed 4/30/09.(lwoo)

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_FiLED UNITED FOR THE STATES DISTRICT OF COURT VIRGINIA EASTERN DISTRICT APR 2 9 CLERK. US DISTRICT COURT NOfi:TOLK V.A Norfolk HOBART M. PARKER, #348528, Petitioner, v. Division 2:08CV542 GENE M. JOHNSON, Director of the Virginia Department of Corrections, Respondent. FINAL ORDER This matter was initiated by petition for a writ of habeas federal corpus under 28 U.S.C. 2254. The petition alleges violation of rights pertaining to petitioner's convictions on July 12, 2005, in the Circuit Court of Stafford County, in the second degree, Virginia, for rape, rape as a principal wounding in the and conspiracy. armed burglary, malicious wounding, commission of a felony as principal in the second degree, As a result of the convictions, one years in the Virginia penal petitioner was sentenced to serve eightysystem. The matter was referred of to a United States Magistrate Judge and for (C|, the and Rule Eastern pursuant to the provisions 72 of the Rules of the 28 U.S.C. States 636(b)(l)(B) Court United District District of Virginia for report and recommendation. The Magistrate Judge filed his report recommending dismissal of the petition on March 5, By copy of the report, each party was advised of his right to 2009. file written objections to the findings and recommendations made by the Magistrate Judge. objections to the The Court received from petitioner on March 16, report and recommendation, and on March 31, 2009, 2009, petitioner filed two documents, Recommendation of the first entitled "Motion to Dismiss the [sic] and Respondent['s] Motion to Magistrate Judge's Dismiss" and the second entitled "Objection to Magistrate Judge's Report Motion to Dismiss." The documents and Recommendation and Respondent['s] will be considered by the Court March 16, 2009. as supplements to the objections filed The Court, having reviewed the record and examined the objections respect to filed by petitioner and to, having does made de novo findings with the the portions objected hereby adopt and approve findings and recommendations set forth in the Report of the United States Magistrate Judge. Therefore, it is ORDERED that the petition be DENIED and DISMISSED on state system and the on basis the of petitioner's and procedural judgment defaults be in the in merits that entered respondent's favor. To the extent that petitioner objects to the Magistrate Judge's findings and recommendations, in the document filed March 16, 2009, the objections are without merit, petitioner raises no objections to instead, re-argues the Magistrate Judge's report and recommendation but the matters presented in his petition. The document is devoid of support as originally determined by the Magistrate Judge. March 31, again, 2009, petitioner essentially presents In the documents filed the same arguments, but there is no substance to support his claims. from the judgment entered pursuant to Petitioner may appeal this Final Order by filing a written notice of appeal with the Clerk of this Court, United States Courthouse, days from 600 the Granby date "a Street, of entry Norfolk, of such Virginia judgment. 23510, within thirty Petitioner has failed to demonstrate substantial showing of the denial of a constitutional right." to Rule 22(b) of Therefore, the Court, pursuant declines to the Federal Rules of Appellate Procedure, issue S.Ct. a certificate 1039 of appealability. See Miller-El v. Cockrell, 123 1029, (2003). The Clerk shall mail a copy of this Final Order to petitioner and to counsel of record for the respondent. Robert Senior UNITED STATES tales District Judge DISTRICT JUDGE Norfplk, Virginia 2009

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