Chatman v. Director, Dept. of Corr.

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 9 Report and Recommendations, 4 Motion to Dismiss filed by Director, Dept. of Corr.; ordering that the petition be denied and dismissed and ordering that judgment be entered in favor of respondent; declining to issue any certificate of appealability and noting appeal procedures. Signed by District Judge Rebecca Beach Smith and filed on 4/6/10. Copy mailed as directed on 4/6/10.(jcow, )

UNITED

STATES DISTRICT

COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

FILED
APR "6 2010

RASHAD MONTRELL CHATMAN,

#365347,

CLERK U S DISTRICT COURT
NO'-v'Oi.K VA

Petitioner,

v>
DIRECTOR, DEPT. OF CORR.,

ACTION NO.

2:O9CV465

Respondent.
ORDER

The Court has received and filed a petition for writ of habeas

corpus
alleges

submitted pursuant
violation of

to

28

U.S.C.

§

2254.
to

The

petition

federal

rights

pertaining

Petitioner's

convictions in the Circuit Court for the City of Virginia Beach for

first

degree

murder,

attempted

robbery,

conspiracy

to

commit

robbery,

use of a firearm in the commission of murder,

use of a

firearm in the commission of attempted robbery,
a firearm by a convicted felon. On November 2,

and possession of
2006, Petitioner

was sentenced to fifty-three years in the Virginia penal system.

The matter was referred to a United States Magistrate Judge

pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and
Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation.
Report and Recommendation the petition. filed February 25, 2010,

The

recommends

dismissal of

The Report and Recommendation recom

mends denial of Ground

(l)(d)

because it was never raised to the

Virginia state courts,

and Chatman has shown no cause for failing

to present the claim and no prejudice resulting

therefrom,

which

this Court must find before considering the merits of the claim.
The Report and Recommendation further recommends denial of Grounds

(l)(a),

(l)(b),

(1)(c)

and

(2)

because

they

were

previously

adjudicated by the Supreme Court of Virginia on the merits and none of the statutory exceptions apply that would allow this Court to

review the claims on the merits.

Each party was advised of his right to file written objections
to the findings and recommendations made by the Magistrate Judge.

On March 5,

2010,

the Court received Petitioner's Objections to the (Doc. l{d) 10) . be Petitioner objects to the dismissed for failure to

Report and Recommendation recommendation
exhaust.

that

Ground

He asserts the ground was raised before the state courts.

(Objs.

at 1-2.)

Petitioner is correct that he did raise Ground

l(d)
his

before the Supreme Court of Virginia.
response to Respondent's motion

However,
his

he did so in
state habeas

to dismiss

petition.

(Objs.

at

1.)

The

Supreme

Court of Virginia denied

petitioner's request to amend the petition
Id.

to add Ground 1(d).

An untimely attempt to present a claim during the state habeas

process,

which is denied by the court,

does not constitute

"fair

presentment" of the claim to the state's highest court sufficient
to meet the exhaustion requirement. See Spencer v. Murray, 18

F.3d 237,

24 0

(4th Cir.

1994)

(holding that when the Supreme Court

of

Virginia denied petitioner

leave

to

file his

petition out

of

time,

the

claim raised in the petition was not

"presented"

to the

state

court

for

exhaustion

purposes).

Further,

if

a

claim

is

barred from state habeas

review on independent and adequate state

procedural grounds, district (1991); court. Breard v.

then it is not subject Coleman v. 949

to review in a federal 501 1255, U.S. 1263 722, 748

See

Thompson, F. Supp.

Netherland,

(E.D.Va.

1996).

Petitioner

is correct

that

the Report and Recommendation

misstates that "Ground l(d)
courts."

was never raised to the Virginia state
However, the recommen

(Report and Recommendation at 6.)

dation that Ground l(d)

be denied for failure to adequately exhaust Therefore, this Court

in the Supreme Court of Virginia is correct.

is

precluded

from

addressing
objections

Petitioner's
to the

Ground
and

l(d).

Peti

tioner's

remaining

Report

Recommendation

merely restate arguments made in the petition and response to the
Motion to Dismiss.

The

Court,

having

reviewed

the

record

and

examined the

objections and having

filed by Petitioner to the Report and Recommendation, made de novo
hereby

findings
adopt

with
and

respect

to
the

the

portions
and

objected

to,

does set

approve

findings

recommendations

forth in the Report and Recommendation filed

February 25,

2010,

with the following revision:

Ground

(1)(d)

is

DENIED because it was not exhausted in the Virginia state courts, which claim. this Court must (1)(a), find before (1)(b), considering and (2) the merits of the

Grounds

(1)(c)

are DENIED because

they were previously adjudicated by the Supreme Court of Virginia

on the merits and none of the statutory exceptions apply that would

allow

this

Court

to

review

the

claims

on

the

merits.

It

is,
It

therefore,

ORDERED that the petition be DENIED and DISMISSED.

is

further ORDERED that judgment be entered in favor of

Respon

dent.

Petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right," therefore, the Court

declines to issue any certificate of appealability pursuant to Rule 22(b)
v.

of the Federal Rules of Appellate Procedure.
123 S.Ct. is 1029, 1039 (2003). that he may

See Miller-El

Cockrell,

Petitioner

hereby

notified

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,
days

600 Granby Street, Norfolk,

Virginia 23 510, within 30

from the date of entry of such judgment.

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

Rebecca Beach Smith United States District Judge
UNITED STATES DISTRICT JUDGE

Norfolk,

Virginia

April

[p

,

2010