Washington v. Johnson

Filing 40

ORDER adopting and approving in full the findings and recommendations set forth in the U.S. Magistrate Judge's 31 Report and Recommendations; denying the petition for writ of habeas corpus as outlined in Order; declining to issue certificate of appealability; noting appeal procedures. Signed by District Judge Rebecca Beach Smith on 3/15/11; ECF to counsel, copy mailed to petitioner 3/16/11. (mwin, )

-TEM Washington v. Clarke, etc.

Doc. 40

UNITED STATES DISTRICT COUR"

EASTERN DISTRICT OF VIRGINlJ
Norfolk Division

pij f-Q

MAR 1 5 2011
MILFORD T. WASHINGTON, NO. 1084114,

Cl.f^K.US DiSTilJCT

Petitioner,
v.
HAROLD W. CLARKE, OF THE VIRGINIA

ACTION NO.

2:10cv89

DIRECTOR

DEPARTMENT

OF

CORRECTIONS,

Respondent.

ORDER

This

matter

was

initiated
§

by

a

petition

for
2010.

writ

of

habeas

corpus under 28 U.S.C.

2254 on February 25,

An Answer and

Motion to Dismiss was filed by the respondent on August 31,

2010.

A Motion for Summary Judgment was filed by the petitioner on August 31, 2010. by A Response the
to

in Opposition on

to

the 20,

Motion 2010.

to Dismiss The matter
to

was was
the

filed

petitioner
a United

September

referred

States

Magistrate

Judge,

pursuant

provisions of 28 U.S.C. Civil Procedure 72(b),

§

636(b)(1)(B)

and

(C)

and Federal Rule of

to conduct hearings,

including evidentiary

hearings,
findings

if necessary,
of fact, if

and to submit to the undersigned proposed
applicable, and recommendations for the

disposition of

the motions.

The United States Magistrate Judge's Report and Recommendation

was

filed on January

18,

2011.

The

magistrate corpus.

judge

recommended

denying the petition for writ of habeas

Dockets.Justia.com

By copy of

the report and recommendation of

the magistrate

judge,

the parties

were advised of

their right to file written

objections thereto.

The court had received no objections to the

magistrate

judge's

report

and recommendation,

and the

time

for

filing same had expired.

Instead, on February 3, 2011, petitioner

prematurely filed a notice of appeal before entry of any final
judgment. By Order dated February 28, 2011, the court advised

petitioner if he wished to file objections with this court to the report and recommendation, he must do so within ten (10) days from

the date of the Order. Reply indicating he

On March 11, 2011, the petitioner filed his did not wish to file objections with this

court, but noted that he has filed his objections with the Fourth
Circuit Court of Appeals.

Accordingly, the findings and

the court does hereby adopt and approve in full recommendations set forth in the Report and

Recommendation of the United States Magistrate Judge filed January

18, 2011.1
(2), and

The petitioner's federal habeas claims in grounds (1),
(4)(i) are DENIED, as they are non-cognizable claims and
court; the ineffective assistance of

are not

reviewable by this

counsel claim in ground

(4) (ii),

as regards counsel's failure to

move for a mistrial and to request a "deadlocked jury" instruction,

xWhile petitioner filed no objection with this court to the magistrate judge's report and recommendation, the court made a full de novo review of the report and recommendation, the supporting pleadings, and the state court records, and found no error.

and the ineffective assistance of counsel claim in ground (3)(A),
as related to the cross-examination of Detective Milner, are DENIED

as procedurally defaulted;

and the remaining/residual claims in

grounds (3)(B) and (C) are DENIED, as the state court reviewed the

claims

on

the

merits,

and

this

court

finds

no

error

in

the

application of Federal law.2

For

the

reasons the

set court

forth finds

herein that

and

in

the has

report failed

and to

recommendation,

petitioner

demonstrate

wa

substantial

showing

of

the

denial

of

a the

constitutional right."
court,

28 U.S.C.

§ 2253(c)(2).

Therefore,

pursuant to Rule 22(b)

of the Federal Rules of Appellate
See

Procedure,

declines to issue a certificate of appealability.

Miller-El v. Cockrell.

537 U.S. 322,

335-36

(2003).
2011, to the

The appeal of the petitioner filed February 3,
Magistrate's Report and Recommendation is

duly noted.

However,

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, 600 Granby Street, Norfolk,

Virginia 23510, within thirty (30) days from the date of entry of
such judgment.

2For clarity in reference, the court has used the delineation of the claims as set forth in the report and recommendation. See
Docket #31 at page 3 and note 1.

The Clerk shall

forward a copy of this Final Order to >all

parties of record, and to the Clerk of the Fourth Circuit Court of
Appeals.

It is so ORDERED.

Rebecca Beach Smith
United States District Judge
UNITED STATES DISTRICT JUDGE

/s/

Norfolk,

Virginia

March

\& , 2011