Brown v. Johnson

Filing 15

ORDER does hereby ADOPT AND APPROVE the findings and recommendations set forth in the report of the United Stated Magistrate Judge filed on 3/3/09, and it is, therefore ORDERED that the petition be DENIED AND DISMISSED as the claims are procedurally defaulted and without merit. It is further ORDERED that judgment be entered in favor of Respondent. Petitioner's motion for voluntary dismissal without prejudice is therefore DENIED. Appeal procedures noted. Signed by District Judge Jerome B. Friedman and filed on 4/7/09. Copy mailed on 4/8/09 (lhow, )

FILED
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGI JIA Norfolk Division

APR -7 ?OGD

CLERK U.S. DISTRICT COURT
I-K. VA

MICHAEL RAY BROWN,

#369717,

Petitioner, v. ACTION NO. 2:08cv544

GENE M. JOHNSON, Director of the Virginia Department of Corrections,
Respondent.

FINAL

ORDER

This

matter was

initiated by petition

for

a writ

of

habeas

corpus under 28 U.S.C.
federal rights

§ 2254.
to

The petition alleges violation of
convictions on May 28,

pertaining

Petitioner's

2004,
(1)

in the Circuit Court of the City of Norfolk, Virginia,
(1)

of one

count of statutory burglary and one

count of grand larceny,

as a result of which he was sentenced to serve a total of ten years in prison, seven (7) years and six (6)

(10)

months suspended.
Magistrate Judge
and (C),

The matter was
pursuant to the

referred to a United States
of 28 U.S.C. §

provisions

636(b)(l)(B)

Rule 72(b) the Rules

of of

the Federal the United

Rules States

of Civil

Procedure and Rule 72 Court for the

of

District

Eastern

District of Virginia for report and recommendation. the magistrate
of

The report of recommending

judge

was

filed
By

on

March
the

3,

2009

dismissal

the petition.

copy of

report,

each party was

advised of his right to file written objections to the findings and

recommendations made by the magistrate judge.

On March 13,

2009,

the

Court

received

Petitioner's

objections

to

the

report

and

recommendation.

The Court received no response

from Respondent.

On

April

6,

2009,

the

Court

received

Petitioner's

motion

for

voluntary dismissal without prejudice.

The

Court,

having

reviewed

the

record

and

examined

the

objections

filed by Petitioner to

the magistrate

judge's

report,

and

having

made

de

novo hereby
forth

findings ADOPT
in the
3,

with AND

respect

to the

the

portions and

objected

to,

does
set

APPROVE
of
and

findings
United
is,

recommendations
Magistrate Judge

report
2009,

the
it

States

filed

on March

therefore,

ORDERED that the petition be DENIED AND DISMISSED as the claims are
procedurally defaulted and without merit. It is further ORDERED

that

judgment
for

be

entered

in

favor

of

Respondent.
prejudice

Petitioner's
is therefore

motion
DENIED.

voluntary

dismissal

without

Petitioner may appeal

from

the

judgment

entered pursuant

to

this

final

order

by

filing

a written notice

of

appeal

with

the

Clerk of

this Court,

United States Courthouse,

600 Granby Street,

Norfolk,
entry of

Virginia 23510,
such judgment.

within thirty
Petitioner

(30)

days

from the date of
to demonstrate "a

has

failed

substantial
Therefore,

showing
the Court,

of

the

denial

of

a

constitutional
of

right."
Rules

pursuant

to Rule

22(b)

the Federal

of

Appellate

Procedure,

declines

to

issue

a

certificate

of

appealability.
(2003).

See Miller-El v. Cockrell,

537 U.S.

322,

335-36

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

/s/

{,

Jerome B. Friedman
UNITED'STATES DISTRXCT JUDGE

Norfolk,

Virginia

April 7 , 2009