Murphy v. Johnson

Filing 10

FINAL ORDER ADOPTING REPORT AND RECOMMENDATIONS for 4 Motion to Dismiss filed by Gene M. Johnson, 9 Report and Recommendations. Ordering that the petition be Denied and Dismissed as the claims are procedurally defaulted and without merit; noting appeal procedures and declining to issue a certificate of appealability. Signed by District Judge Mark S. Davis and filed on 6/8/09. Copy mailed 6/9/09.(lwoo)

FILED
UNITED FOR THE STATES DISTRICT COURT VIRG] NIA EASTERN DISTRICT OF

Norfolk Division

JUN -8 2003
NORFOLK VA

CLERK. U.S. DISTRICT COURT

CHRIS

MURPHY,

#380512, Petitioner,

v.

CIVIL ACTION NO.

2:09cv51

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

FINAL

ORDER

This

matter was

initiated by petition § 2254.
to

for

a writ

of

habeas

corpus under 28 U.S.C.
federal

The petition alleges violation of
convictions on June 27,

rights pertaining

Petitioner's

2007
(1)

in the Circuit Court of the City of Hampton,
count of second degree murder and one (1)

Virginia,
of

of one
of a

count

use

firearm in the commission of a felony,
sentenced to serve a total of forty

as a result of which he was
years in prison for the

(40)

second degree murder charge and three

(3)

years

in prison for

the

use of a firearm in the commission of a felony charge,
five (25)
The pursuant Rule

with twenty-

years
matter to the of

suspended.
was referred to a United U.S.C. Civil States § Magistrate and Judge (C) , 72 of

provisions

of

28 of

636(b)(l)(B)

72(b)

the Federal

Rules

Procedure

and Rule

the

Rules

of

the

United

States

District

Court

for

the

Eastern

District of Virginia

for report and recommendation.

The report of

the

Magistrate of

Judge

was

filed

on

April

10,

2009

recommending

dismissal

the petition.

By copy of

the report,

each party was

advised of his right to file written objections to the findings and recommendations made by the magistrate
no response from either party.
having reviewed the record, does hereby ADOPT AND

judge.

The Court received

The Court,

APPROVE the findings and recommendations set forth in the report of

the United States Magistrate Judge filed on April 10,
is, therefore,

2009,

and it

ORDERED that the petition be DENIED AND DISMISSED as

the

claims

are

procedurally
that

defaulted

and

without merit.

It

is

further ORDERED

judgment be entered in favor of Respondent.

Petitioner may appeal

from

the

judgment

entered pursuant

to

this

final

order

by

filing

a

written

notice

of

appeal

with

the

Clerk of Norfolk,

this Court,

United States

Courthouse, (30)

600 Granby Street, from the date of

Virginia 23510,

within thirty

days

entry of

such

judgment.

Petitioner has

failed to demonstrate

"a

substantial
Therefore,
of

showing
the Court,

of

the

denial

of

a

constitutional
of

right."

pursuant to Rule 22(b)
declines v. to

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

Appellate

Procedure, See

issue 537

appealability.
(2003).

Miller-El

Cockrell.

335-36

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

Mark S. Davis

United States District Judge
UNITED STATES DISTRICT JUDGE

Norfolk,
;

Virginia
2009