Barbour v. Virginia Department of Corrections at WRSP

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 7 Motion to Dismiss filed by Gene M. Johnson; 22 Report and Recommendations. Petitioner's objection is OVERRULED. The Court ADOPTS AND APPROVES the findings and recommendations in the report of the United States Magistrate Judge filed on 6/21/10 and it is ORDERED that the petition be DENIED AND DISMISSED as the petition is procedurally defaulted. It is further ORDERED that judgment be entered in favor of Respondent. Signed by District Judge Mark S. Davis and filed on 7/28/10; Copy ECF to counsel and mailed to pro se on 7/29/10. (kgri)

Barbour v. Johnson

Doc. 24

FiLED
UNITED STATES DISTRICT COURT
Norfolk Division

FOR THE EASTERN DISTRICT OF VIRGINI|A

JUL 2 8 2010
CLERK, U.S^ DISTRICT COURT
NOHPOLK VA

KENNETH EDWARD BARBOUR,

#323278,

Petitioner,
v.

ACTION NO. 2:09cv302

Virginia Department of Corrections,
Respondent.
FINAL ORDER

GENE M.

JOHNSON,

Director,

This matter was initiated by petition for a writ of habeas

corpus under 28 U.S.C. § 2254.

The petition alleges violation of

federal rights pertaining to Petitioner's conviction in the Circuit
Court of Arlington County, Virginia.

The matter was referred to a United States Magistrate Judge

pursuant to the provisions of 28 U.S.C.

§ 636<b)(l)<B)

and (C) ,

Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 72 of
the Rules of the United States District Court for the Eastern

District of Virginia for report and recommendation.

The report of

the magistrate

judge was

filed on June 21,

2010,

recommending
each party was

dismissal of the petition.

By copy of the report,

advised of his right to file written objections to the findings and
recommendations made by the magistrate judge.
Court received Petitioner's Objection.
received no response from Respondent.

On July 1, 2010, the
The Court

(Doc. No. 23.)

The majority of Petitioner's Objection was unintelligible.

The

Court

discerns
judge's

only
report

one

objection

to

the

merits

of

the

magistrate

and

recommendation.

Specifically,

Dockets.Justia.com

Petitioner states that he has demonstrated cause that excuses his
claims from being procedurally defaulted. Petitioner does not

allege facts that constitute cause, but rather he summarily states
that cause exists.

in

his

report

and

recommendation,

the

magistrate

judge

addressed the limited exceptions to procedural default and found that "Barbour failed to establish the requisite cause for his
failure to comply with the applicable state procedural rules." The

Court agrees, and Barbour has not alleged facts in his Objection
that change the Court's analysis. Accordingly, Petitioner's

objection is OVERRULED.

The

Court,

having

reviewed

the

record

and

examined

the

objections filed by Petitioner to the magistrate judge's report,

and having made de novo findings with respect to the portions objected to, does
set

hereby
forth

ADOPT
in the

AND APPROVE
report of

the
the

findings
United

and

recommendations

States

Magistrate Judge filed on June 21,

2010,

and it is,

therefore,

ORDERED that the petition be DENIED AND DISMISSED as the petition
is procedurally defaulted. It is further ORDERED that 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 this Court, United States Courthouse, 600 Granby Street,

Norfolk, Virginia 23510, within thirty (30) days from the date of

entry of such judgment.

Petitioner has

failed to demonstrate

"a

substantial showing of the denial of a constitutional right."

28

U.S.C. § 2253(c)(2).

Therefore, the Court, pursuant to Rule 22(b)
declines to issue a
537 U.S.

of the Federal Rules of Appellate Procedure,
certificate of appealability.
322, 335-36 (2003) .

spp Miller-El v. Cockrell,

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

United States District Judge
DISTRICT JUDGE

UNITED STATES

Norfolk,

Virginia

July 3ft , 2010