Gould v. City of Ne et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 7 Report and Recommendations, ordering that the petition be denied and dismissed on the basis of petitioner's failure to exhaust his available state court remedies, noting appeal procedures and declining to issue a certificate of appealability. Signed by District Judge Jerome B. Friedman and filed on 1/13/10. Copy mailed as directed on 1/13/10.(jcow, )

FILED
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGI1 IA Norfolk Division

JAN 1 3 2010
CLERK. U.S. DISTRICT COURT

KELVIN GOULD,

#0009214

NCR.-OLK. VA

Petitioner,
v. 2:09CV571

CITY OF NEWPORT NEWS, ATTORNEY JEFFREY COLE ROUNTREE,

ATTORNEY TYONE C. JOHNSON, and ARTISHA K. TODD, Assistant Commonwealth's Attorney,

Respondents.

FINAL

ORDER

This matter was corpus under 28 U.S.C.

initiated by petition

for a writ

of habeas

§ 2254.

The petition alleges violation of federal

rights pertaining to petitioner's continued incarceration on charges of

inanimate

object

sexual

penetration
parts.

and

knowingly
charges

and

intentionally

exposing his

sexual

or genital

The

have been pending

since January 30,

2007.

The matter was

referred to a United States Magistrate Judge
§ 636(b)(1)(B) and (C), and Rule

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

72

of

the

Rules

of

the

United

States

District

Court

for

the

Eastern

District of Virginia for report and recommendation.

The Magistrate Judge

filed his report recommending dismissal of the petition on December 16, 2009. By copy of the report, petitioner was advised of his right to file objections to the findings and recommendations made by the

written

Magistrate Judge.1

The Court received from petitioner on December 22,

required to answer the petition.

1

Since petitioner's claims are not exhausted,

the respondents were not

2009,

a

document

entitled

"Affidavit,"

which

is

construed

to

be

objections to the report.

The

Court,

having

reviewed

the

record

and

examined

the

objections filed by the petitioner and having made de novo findings with
respect to the portions objected to, does hereby adopt and approve the

findings and recommendations set forth in the Report of the United States Magistrate Judge. and DISMISSED on Therefore, the basis it is ORDERED that the petition be DENIED of petitioner's failure to exhaust his

available state court remedies.

To

the

extent

that

petitioner

objects

to

the

Magistrate On

Judge's findings and conclusions,
November 26, 2007,

the objections are without merit.

petitioner filed a petition for writ of habeas corpus

in this Court.
the Newport

The petition was dismissed because petitioner's case in
Circuit Court was pending, and therefore, his claims

News

were not ripe

for adjudication by a federal
2009,

court.

On November 12,

petitioner filed the instant petition.

However,

the charges against petitioner in the Newport News Circuit Court

are still pending, but the matter is set for trial on February 10,
Between November,
state courts.

2010.

2007,

and November,
petitioner

2009,
has,

no relief was sought in the
once again, sought federal

Instead,

relief.

The Magistrate Judge appropriately recommended dismissal of the

petition

because

the

issues

raised

therein

are

still

not

ripe

for

adjudication.

Until the Commonwealth of Virginia has tried petitioner
exhausted his state court remedies, this Court

or until petitioner has
is unable to act.

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, days from

600 the

Granby date

Street, of entry

Norfolk, of such

Virginia

23510,

within

thirty

judgment.

Petitioner has

failed to demonstrate

"a substantial

showing

of the denial of a constitutional right." to Rule 22(b) of the

Therefore,

the Court, pursuant declines to

Federal Rules of Appellate Procedure,

issue
U.S.

a

certificate
336 (U.S.

of

appealability.

See

Miller-El

v.

Cockrell,

537

322,

2003) .

The Clerk shall mail a copy of this Final Order to petitioner
and to counsel of record for the respondent.

/s/
JEROME B. FRIED1

UNITED STATES

DISTRICT JUDGE

Norfolk,

Virginia
2010

January 13,