Simons v. Johnson

Filing 10

FINAL ORDER; adopt and approve re 8 Report and Recommendations. ORDERED that the petition be DENIED and DISMISSED. It is further ORDERED that respondent's 3 Motion to Dismiss is GRANTED; the Court declines to issue any certificate of appealability; appeal procedures noted. Signed by District Judge Jerome B. Friedman and filed on 7/1/10. Copy mailed on 7/1/10 (lhow, )

Simons v. Johnson

Doc. 10

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGIN! Norfolk Division
JIMMY EUGENE SIMONS,
Petitioner,

FILED
JUl -1
CLERK. U.S. DISTRICT COURT
NOHi-'OlK. VA

v.

ACTIONNO.2:10cv24

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 unlawful use of tear gas and grand larceny on October 7, 1997, in the Circuit Court for York County, Virginia, as well as that Court's subsequent revocation of probation on that sentence.

The matter was referred to a United States Magistrate Judge for report and recommendation
pursuant to the provisions of 28 U.S.C. § 636(b)(l)(B) and (C) and Rule 72 of the Rules of the

United States District Court for the Eastern District of Virginia. The Report and Recommendation

filed May 25,2010, 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 June 9,
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 de novo findings with respect to the portions

Dockets.Justia.com

objected to, does hereby adopt and approve the findings and recommendations set forth in the Report

and Recommendation filed May 25,2010.l It is, therefore, ORDERED that the petition be DENIED
and DISMISSED. It is further ORDERED that respondent's Motion to Dismiss 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) of the Federal Rules of Appellate Procedure. See Miller-El v. Cockrell. 123 S.Ct. 1029,1039 (2003). 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, 600 Granby Street, Norfolk, Virginia 23510, within thirty (30) 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.

/s/

JEROME B. FRIEDMAN
UNITED STATES DISTRICT JUDGE Norfolk, Virginia

T(

/

,2010

Holland v. Florida. --S. Ct.--, available at 2010 WL 2346549 (June 14, 2010), wherein the Court addressed the equitable tolling standard applicable in § 2254 cases. As noted on page five of the Report and

1 Following the issuance of the Report and Recommendation, the United States Supreme Court decided

Recommendation, here, petitioner does not argue that he is entitled to equitable tolling. However, out of

an abundance of caution, this court has thoroughly reviewed Holland. The court finds that Holland has no practical impact on the accuracy of the thorough analysis set forth in the Report and Recommendation.