Tensley v. Johnson

Filing 15

FINAL ORDER that the Petition be DENIED and DISMISSED WITH PREJUDICE; Adopting the Report and Recommendations; GRANTING Respondent's 6 Motion to Dismiss, and judgment be entered in favor of the Respondent; noting appeal procedures and declining to issue a certificate of appealability. Signed by District Judge Raymond A. Jackson on 2/23/11 and filed 2/25/11. Copy mailed 2/25/11.(lwoo)

-FBS Tensley v. Johnson

Doc. 15

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

FiLED

Norfolk Division

FEB 2 5 2011
CLr.-V.U.S n:ST?>!CT COI-K7

TERRELL L.

TENSLEY,

#1001727,

Petitioner,

v. HAROLD W. CLARKE, Director of the

Case No.

2:10cv347

Virginia Department

of Corrections,

Respondent.

FINAL

ORDER

This

matter

was

initiated

by

petition

for

a

writ

of

habeas

corpus
of

under

28

U.S.C.

§

2254.
to

The

petition

alleges

violations
in the

federal

rights of
of

pertaining

Petitioner's Virginia, of

conviction

Circuit
two

Court

Stafford County,
aggravated

attempted murder,
conspiracy to

counts

malicious

wounding,

commit

a

felony, of a

three

counts three

of

use of

of

a

firearm wounding
a

in

the

commission
the an

felony,
of a

counts

unlawful

during

commission occupied of

felony, two in

maliciously counts a of

discharging a

firearm at and

building, a firearm

brandishing place, as a

firearm, of

discharge

public

result

which

he

was

sentenced

to
55

serve
years

a

total

of

105

years

in

the

Virginia

penal

system,
The

with
was

suspended.
to a United States Magistrate Judge

matter

referred

pursuant

to

the

provisions

of

28

U.S.C.

§

636(b)(l)(B)

and

(C) ,

Dockets.Justia.com

Rule
of

72 (b)

of

the
of

Federal

Rules

of

Civil

Procedure,
Court for

and
the

Rule

72

the

Rules

the

United States

District

Eastern

District
of the

of

Virginia

for

report
was

and

recommendation.
on December

The
29,

report
2010,

magistrate

judge

filed

recommending
of the

that

the petition be denied and dismissed.
each party was advised of his right

By
to

copy
file

report,

written
the

objections

to

the
On

findings
January

and
21,

recommendations
2011, the Court

made

by

magistrate

judge.

received

the

petitioner's

written

objections.1
to

(ECF

No.

13.)

The

respondent
The

filed no response

the petitioner's
simply

objections.
arguments from

petitioner's

objection

reiterates

his

petition

on

the merits

of

his

claim
based

that
on

his

conviction

for

aggravated malicious with respect to

wounding was that the

insufficient a

evidence and

proof

victim

suffered

permanent

substantial
the
on

impairment,
judge
on

an essential
in his
to

element

of

that crime.2
claim was

As

magistrate
the merits

noted

report,

this

denied

direct

appeal

the Virginia Court

of Appeals.

There

is

nothing

in

the

record,

nor

has

petitioner

identified

1

The

objections
stating

were
that the

accompanied
objections

by
were

the

petitioner's
in the

certification

deposited

prison mail system on January 18, 2011. Accordingly, the objections shall be deemed timely filed pursuant to Rule 3(d) of
the Rules Governing Section 2254 Cases in the United States

District Courts

2 The petitioner does not object to the magistrate judge's
to his other claims.

{following 28 U.S.C.

§

2254) .

report with respect

anything

in

his

objection,

to

suggest

that

this

adjudication

on

the

merits

by

the

Virginia

Court

of

Appeals
of, a

was

contrary

to,

or

involved federal on

an law,

unreasonable nor that it

application resulted of in

clearly

established was based the

decision facts.

that

an unreasonable

determination

the

Accordingly,

petitioner's

objection is

OVERRULED.

The
AND

Court,
the

having

reviewed
and

the

record,

does
set

hereby
forth on

ADOPT
in the

APPROVE of

findings

recommendations Judge

report 29,

the (ECF be

United No.

States and

Magistrate it is,

filed

December that the

2010

10), AND

therefore, PREJUDICE

ORDERED for the

petition stated

DENIED the

DISMISSED

WITH

reasons in the

in

report.

Adopting

the

recommendations

magistrate
Motion that to

judge's
Dismiss

report,
6)

it
be

is

ORDERED
It

that
is

Respondent's
ORDERED

(ECF No.

GRANTED.

further

judgment be

entered in favor of

Respondent.

Petitioner may

appeal

from

the

judgment

entered pursuant

to

this
Clerk

final
of

order
this

by

filing

a

written
States

notice

of

appeal

with

the

Court,

United 23510,

Courthouse, thirty (30)
has

600

Granby from
to a the

Street,
the date

Norfolk,
of

Virginia
of such

within

days

entry wa

judgment. showing §
the

Petitioner of the

failed of

demonstrate

substantial 28

denial

constitutional
Court, pursuant

right."
to Rule

U.S.C.
of

2253(c)(2).
Federal

Therefore,
of

22(b)

Rules

Appellate

Procedure,

declines

to

issue
537

a
U.S.

certificate
322, 335-36

of

appealability.

See Miller-El v.

Cockrell,

(2003).

The

Clerk

shall

mail
of

a

copy

of

this

Final

Order

to

Petitioner and to

counsel

record for Respondent.

United States District
UNITED STATES DISTRICT JUDGE

Raymond A. Jackson

Norfolk,

Virginia

February <)\

>

2 011