Gatlin v. Johnson

Filing 14

FINAL ORDER adopting and approving the findings and recommendations set forth in 12 Report and Recommendations; denying and dismissing the petition; granting respondent's 4 Motion to Dismiss; declining to issue any certificate of appealability; noting appeal procedures. Signed by District Judge Rebecca Beach Smith and filed on 5/21/10. ECF to counsel, copy mailed to petitioner 5/21/10.(mwin, ) Modified on 5/24/2010 to note copy re-mailed 5/24/10. (mwin, )

___ FILED
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
UNITED STATES DISTRICT COURT

MAY 2 1 2010
CLERK. U.S. DISTRICT COURT
NDHCPLK. VA

GEORGE JONATHAN GATLIN,

#364625

Petitioner,

ACTION NO.

2:09cv509

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. § 2254.

The petition alleges violation of

federal rights pertaining to petitioner's convictions for voluntary

manslaughter and use of a firearm in the commission of a murder on May 11, 2006, in the Circuit Court for the City of Virginia Beach,

as a result of which he was sentenced to serve thirteen years in
the Virginia penal system.

The matter was referred to a United States Magistrate Judge

for

report
§

and recommendation pursuant
and (C) and Rule

to
72

the provisions
of the Rules

of
of

28
the

U.S.C.

636(b)(l){B)

United States District Court for the Eastern District of Virginia.
The Report and Recommendation filed April 16, 2010, recommends

dismissal of the petition.

Each party was advised of his right to

file written objections to the findings and recommendations made by

the

Magistrate

Judge.

On

April

29,

2010

the

Court

received

petitioner's Objections to the Report and Recommendation.

The respondent filed no response to the objections and the time for
responding has now expired.

The

Court,

having

reviewed

the

record

and

examined

the

objections filed by petitioner to the Report and Recommendation,

and having made
objected to,

de novo
hereby

findings with
adopt and

respect

to
the

the portions
findings and

does

approve

recommendations set forth in the Report and Recommendation filed
April 16, 2010. It is, therefore,
It is

ORDERED that
ORDERED

the petition be
respondent's

DENIED and DISMISSED.
Motion to Dismiss

further

that

is GRANTED.

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. 1029, 1039 (2003).

See Miller-El

Cockrell,

Petitioner

is

hereby notified

that

he 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,
thirty (30)

600

Granby

Street,

Norfolk,

Virginia

23510,

within

days 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 Stateg/Bfetrict
REBECCA BEACH SMITH

/s/

UNITED STATES DISTRICT JUDGE

Norfolk,

~A'

?\

Virginia

2010