Shaw v. Johnson

Filing 19

FINAL ORDER; ADOPT AND APPROVE 15 Report and Recommendations; therefore ORDERED that the petition be DENIED AND DISMISSED as the petition is without merit. It is further ORDERED that judgment be entered in favor of Respondent; the Court declines to issue a certificate of appealability; appeal procedures noted. Signed by District Judge Mark S. Davis and filed on 8/13/10. Copy mailed on 8/13/10 (lhow, )

FILED
AU6 13 2010
UNITED
FOR THE

STATES

DISTRICT
OF

COURT
VIRGINIA

EASTERN DISTRICT

Norfolk Division
ANTHONY D.
v.
GENE M. JOHNSON, DIRECTOR,

CLERK, U.S. DISTRICT COURT
NORFOLK. VA

SHAW,

#344733,
CIVIL ACTION NO. 2:09cv593

Petitioner,

Respondent.

FINAL ORDER

This

matter

was

initiated by petition § 2254.

for

a

writ

of

habeas

corpus under 28 U.S.C.

The matter was referred to a United to the provisions
the Federal

States Magistrate Judge pursuant
636{b)(l)(B) and (C) , Rule 72 (b)

of

28 U.S.C.
of

§

of

Rules

Civil

Procedure,

and Rule 72

of the Rules of

the United States District

Court for the Eastern District of Virginia for report and recommen dation. The report of the magistrate judge was filed on June 4,

2010,

recommending
each party

dismissal
was

of

the
of

petition.
his right

By
to

copy
file

of

the

report,

advised

written

objections magistrate

to

the

findings On July

and 15,

recommendations the Court

made

by

the Peti

judge.

2010,

received

tioner's Objection.
from Respondent.

(Doc. No.

18.)

The Court received no response

Petitioner first objects to the standard of proof used by the

magistrate
claim.

judge

in

evaluating

the merits
argues

of

Petitioner's
to prevail

first
on his

Specifically,

Petitioner

that

ineffective

assistance
of the

of

counsel

claim,
he

he need not

prove
to

by

a

preponderance

evidence

that

was

incompetent

stand

trial,

but rather that there was a reasonable probability that he

was incompetent to stand trial and therefore he suffered prejudice
as a result of counsel's deficient performance.

Petitioner is correct that under Strickland v. Washington,

466

U.S.

668,

688-89

(1984),

a petitioner need only show that there is
rather than prove by a preponderance of

a reasonable probability,

the evidence,

that the petitioner would have been found incompetent

had

his

counsel
prior 644,

requested
to trial. (9th Cir.

that
See,

the

petitioner's
Charles v.

competence
Farwell.

be
263

evaluated Fed.Appx.

e.g..

646

2008).

In fact,

the magistrate judge

applied
that

this

standard

to

Shaw's

petition,

and nonetheless
there was a

found

Petitioner had not demonstrated that

reasonable

probability that he would have been found incompetent and that the
outcome of his trial or sentencing would be different. Recommendation at 12-13.) Therefore, the Court (Report and that the

finds

magistrate
claim.

judge

applied

the

correct

standard

to

Petitioner's

Petitioner also objects to the magistrate judge's evaluation
of the evidence regarding Petitioner's competence. The undersigned

finds

that the magistrate judge did not err in his evaluation of

the evidence.

Here,

the

Circuit

Court

of

King

William

County

evaluated

Petitioner's claim that his counsel was ineffective for failing to
request a competency evaluation, and the court determined that the

evidence did not

show that but

for counsel's

alleged error,

there

is a reasonable probability that Petitioner would have been found incompetent.
court unless federal 362, must the

As noted in the report and recommendation,
defer to a state court's determination federal

a federal
as this

such or

determination

conflicts

with

law

applies 529 U.S. evidence

law in an unreasonable way. (2000). The magistrate

Williams v. judge

Tavlor, the

386

considered

regarding
supports

Petitioner's

competency

and

found
This

that

the

evidence

the state court's

determination.

Court

agrees.

Finally,

Petitioner

also

objects

that

the

circumstances

surrounding his guilty plea were not as indicated by the magistrate

judge

and

that

there

is

a

factual

dispute

whether

Petitioner's
Because

counsel sufficiently investigated witnesses and evidence.

the

magistrate
and

judge

addressed

Petitioner's

allegations

in

his
and

report

recommendation,

properly

applying

Strickland

deferring

to

the

state

court's

determinations,

the

Court

agrees

with

the

magistrate

judge's

report

and

recommendation.

Accordingly,

Petitioner's objections are OVERRULED.

The

Court,

having

reviewed

the

record

and

examined

the

objections
and having

filed by Petitioner to the magistrate judge's
made de novo findings with respect to the

report,
portions

objected

to,

does
set

hereby
forth

ADOPT
in the

AND

APPROVE
of

the
the

findings
United

and

recommendations

report

States

Magistrate

Judge

filed

on

June

4,

2010,

and

it

is,

therefore,

ORDERED that

the petition be DENIED AND DISMISSED as

the petition

is without merit.

It is further ORDERED that judgment be entered

in favor of Respondent.

Petitioner may appeal this final order by filing

from the a

judgment notice

entered pursuant of appeal with

to the

written

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
28

substantial showing of the denial of a constitutional right." U.S.C. § 2253(c){2). Therefore, the Court,

pursuant to Rule 22 (b)

of

the Federal

Rules

of Appellate Procedure,

declines

to

issue a 537 U.S.

certificate of appealability.
322, 335-36 (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.

Is

Mark S.

Davis

United States District Judge
Norfolk, Virginia

August \3 , 2010