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)

_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