Perry v. Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services et al

Filing 19

FINAL ORDER accepting the findings and recommendations set forth in 18 Report and Recommendation; denying and dismissing the petition on the basis of petitioner's failure to exhaust his available state court remedies, and on the basis that Cla ims 1, 3, and 4 are noncognizable; directing that judgment be entered in respondent's favor; noting appeal procures; declining to issue certificate of appealability. Signed by District Judge Mark S. Davis on 1/11/10; filed 1/12/2010. Copy mailed to petitioner, ECF to counsel, 1/12/10.(mwin, )

FILED
UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF VIRGINI

Norfolk Division

JAN 1 2 2010
CLERK. U.S. DISTRICT COURT
NORFOLK. VA

GERALD

E.

PERRY,

Petitioner,
v.

2:09CV130
S. REINHARD, M.D.,

COMMISSIONER JAMES

Respondent.

FINAL

ORDER

This
habeas corpus

matter
under

was
28

initiated
§

by

petition
The

for

a

writ

of

U.S.C.

2254.

petition

alleges

violation of federal rights pertaining to petitioner's commitment

to Central State Hospital, operated by the Department of Behavioral
Health guilty,
Court

and by
for

Developmental reason
the

Services, of

after grand

having larceny
on

been in

found

not

of

insanity,

the

Circuit
2008.

City

of

Chesapeake,

Virginia,

July

14,

Petitioner remains The Judge pursuant (C) and Rule

in custody at Eastern State Hospital. was referred to a United § States Magistrate and

matter to

the provisions the Rules of

of

28 U.S.C.

636(b)(l)(B)

72 of

the United States District Court

for the Eastern District of Virginia for report and recommendation. The Magistrate Judge
the petition, on

filed his
8,

report,
By

recommending dismissal of
copy of the report, each

December

2009.

party was advised of their right to file written objections to the

findings

and recommendations made by

the Magistrate Judge.

The

Court has received no objections to the report,
filing same has expired.

and the time for

The recommendations

Court set

does forth

hereby in the

accept report of

the the

findings United

and

States

Magistrate Judge.
DENIED and

Therefore,
on the

it is ORDERED that the petition be
basis of petitioner's failure to

DISMISSED

exhaust his available state court remedies,
Claims 1, 3, and 4 are noncognizable. It is

and on the basis that
further ORDERED that

judgment be entered in respondent's

favor.

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, Walter E. Hoffman United States Courthouse,

600 Granby Street, Norfolk, Virginia 23510, within thirty days from the date of entry
"a

of

such

judgment.
showing
the

Petitioner
of the

has

failed
of
to

to
a

demonstrate

substantial

denial

constitutional

right."

Therefore,

Court,

pursuant

Rule

22 (b)

of

the

Federal

Rules

of

Appellate

Procedure,

declines

to

issue a certificate of appealability.
537 U.S. 322, 336 (U.S. 2003).

See Miller-El v.

Cockrell.

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

Norfolk,

Virginia

January J_L

, 2010