Thomas v. The Virginia Department of Corrections

Filing 17

FINAL ORDER; 14 Motion for Extension of Time is DENIED as MOOT; ADOPT AND APPROVE 12 Report and Recommendations. ORDERED that the petition be DENIED AND DISMISSED as Petitioner's claims are procedurally defaulted. 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 Raymond A. Jackson on 8/9/10 and filed on 8/10/10. Copy mailed on 8/11/10 (lhow, )

UNITED

STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

AUG 10 2010
1 Nr-rn.K VA ,

C EHK U.S DISTiiiCT COURT

ROBERT D.

THOMAS,

#346090,

Petitioner,

v.
GENE M. JOHNSON, Director of the

CIVIL ACTION NO.

2:10cv73

Virginia Department

of Corrections,

Respondent.
FINAL ORDER

This

matter was

initiated by petition § 2254.
to

for

a

writ

of

habeas

corpus under 28 U.S.C.
federal rights

The petition alleges violation of
Petitioner's conviction, in the

pertaining

Circuit

Court

for

Fauquier

County,

for

driving

after

being

adjudicated a habitual The matter was pursuant to the

offender. to a United U.S.C. States Magistrate Judge § 636(b)(l){B) and (C) ,

referred

provisions

of

28

Rule 72(b) the Rules

of the Federal Rules of Civil of the United States

Procedure, Court

and Rule 72 of the Eastern

District

for

District of Virginia for report and recommendation. the magistrate
of

The report of recommending
each party was

judge

was

filed

on

July

2,

2010,

dismissal

the petition.

By copy of

the report,

advised of his right to file written objections to the findings and recommendations the Court made by the magistrate judge. On July (Doc. No. 19, 13.) 2010, The

received

Petitioner's

Objections.

Court received no response

from Respondent.

As

a

preliminary were 14.)

matter,

the

Court

notes for were

that

Petitioner's of Time. and a

Objections (Doc. No.

accompanied by a Motion Petitioner's
of

Extension timely

Objections
was

filed,

request

for

extension

time

unnecessary.

Accordingly,

Petitioner's Motion Petitioner
First,

for Extension of Time is two objections that

DENIED as MOOT. warrant discussion.

raises

Petitioner argues

that though the Supreme Court of Virginia

found that Petitioner's claims were procedurally defaulted because
he should have challenged his sentencing order as ambiguous in an

appeal,

Petitioner

attempted

to

appeal

but

had

ineffective

assistance of counsel and his counsel failed to perfect his appeal.
A review of the record reveals that Petitioner may

misunderstand Specifically,

the

holding

of

the

Supreme

Court

of

Virginia.

the Supreme Court of Virginia held that Thomas should
Thomas's

have appealed his original sentencing order as ambiguous.

claims

regarding

ineffective

assistance

of

counsel

relate

to
In

counsel's representation in relation to Thomas's re-sentencing.

fact,

Thomas's

trial

counsel

did

appeal

Thomas's

original

convictions,
overturned.

which
Thomas

is

how

his

failure

to

appear

conviction

was

could have challenged the original

sentencing

order as ambiguous in his initial appeal,

and his failure to do so

is

what

now causes

his

challenge

to be procedurally defaulted.
OVERRULED.

Accordingly,

Thomas's

first objection is

Thomas
five (5)

also objects

that

if he

serves
(2)

four
years

(4)

years

of his

year sentence,

followed by two

of post-release

supervision,

his

total

sentence

exceeds

the

maximum

sentence

authorized by Virginia law.1
§ 46.2-357 of driving after

Thomas was convicted under Va.
having been declared
(5)

Code

a

habitual
all but

offender,
four (4)

second offense,
years suspended,

and sentenced to five
followed by two (2)

years,

years of post-release offender

supervision. conviction is

The maximum sentence five (5) years

for a second habitual Va. Code §

imprisonment.

46.2-357.

Under Va.

Code §

19.2-295.2,

upon a conviction for any felony

offense, than Court six of

the court may establish a period of (6) months nor more held than three (3)

supervision not years. the The

less

Supreme a

Virginia has

that,

"in determining

length of

permitted sentence,

the three-year term of postrelease supervision

is added to the
Williams v.

[maximum]

term that could have been imposed
270 Va. 580, 584 (Va. 2005).
five

..."

Commonwealth.

Therefore,
(5) years

the maximum sentence Thomas

could have

received is

imprisonment

and

three

(3)

years

post-release

supervision.

1 The Court notes that in his objections, Thomas wrote,
Respondent states, now that the Petitioner had Appear conviction reversed he will only have 1 yr.

w[t]he
to In

his Failure probation."

fact, Respondent stated, "[t]he benefit to Thomas of the reversal of the failure to appear conviction and sentence is that he has but one year of a suspended sentence after release, rather than four years." It appears to the Court that Respondent commented on Thomas's suspended sentence and not his term of supervision following release.

Accordingly, Thomas's sentence does not exceed the maximum sentence
proscribed by law, and his objection is OVERRULED.

The

Court,

having

reviewed to

the

record

and

examined

the

objections

filed by

Petitioner

the magistrate

judge's

report,

and

having

made

de

novo
hereby

findings
ADOPT

with
AND

respect

to
the

the

portions
and

objected

to,

does

APPROVE

findings

recommendations Magistrate Judge

set

forth on

in

the 2,

report 2010,

of and

the it

United is,

States

filed

July

therefore,

ORDERED that
claims are

the petition be DENIED AND DISMISSED as
defaulted. It is further

Petitioner's
ORDERED that

procedurally
entered in

judgment be

favor

of Respondent.

Petitioner may appeal this final order by filing

from a

the

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

(3 0)

days

from

the date of

entry of

such judgment.

Petitioner has

failed

to

demonstrate

na 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

certificate of appealability.
322, 335-36 (2003) .

See Miller-El v.

Cockrell,

537 U.S.

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

United States District Judge
UNITED STATES DISTRICT JUDGE

Norfolk,

Virginia

August t?

, 2010