Butts v. Clarke
Filing
16
FINAL ORDER overruling petitioner's objections to the Magistrate Judge's Report and Recommendation; adopting and approving the findings and recommendations set forth in the Magistrate Judge's 11 Report and Recommendation; granting re spondent's 4 Motion to Dismiss; denying and dismissing the petition with prejudice for the reasons stated in the report; directing that judgment be entered in favor of the respondent; noting appeal procedures; declining to issue a certificate of appealability. Signed by District Judge Mark S. Davis and filed on 2/28/12. ECF to counsel, copy mailed to petitioner.(mwin, )
FiLED
UNITED
FOR THE
STATES
DISTRICT
EASTERN DISTRICT
COURT
FEB 2 8 2012
OF VIRGINIA
Norfolk Division
Cl hnK. '.i.o r:-:,;;; "I" COL Vf
WAYNE
D.
L_.-i_r_.:i:
BUTTS,
Petitioner,
Case
V.
HAROLD W.
Virginia
CLARKE,
Director
Department
of
of
No.:
2:llcv420
the
Corrections,
Respondent.
FINAL
This
corpus
of
under
federal
the
was
pertaining
of
the
to
serve
a
provisions
the
of
the
of
the
of
of
magistrate
prejudice.
and
a
five
of
alleges
Williamsburg
of
writ
petitioner's
entering,
term
referred to
that
No.
for
as
violations
James
result
years
habeas
conviction
and
a
report
11.
States
§
of
Civil
in
of
in
City
which
prison,
was
copy
Procedure,
with
of
Court
for
on
denied
the
report,
and
(C) ,
Rule
the
Eastern
January
and
Judge
and
recommendation.
filed
be
Magistrate
636(b)(l)(B)
District
and
petition
By
United
U.S.C.
States
judge
the
a
28
Rules
United
Virginia
ECF
of
Federal
District
recommending
petition
the
of
for
suspended.
to
the
to
breaking
petition
The
City
was
Rules
by
2254.
matter
72 (b)
the
§
of
sentenced
pursuant
initiated
U.S.C.
Virginia,
The
of
28
Court
eight months
Rule
was
rights
Circuit
County,
he
matter
ORDER
The
report
9,
2012,
dismissed
each
72
party
with
was
advised
of
his
right
to
file
written
objections
and recommendations made by the magistrate
2012,
the
Court
objections.1
the
ECF No.
petitioner's
In
received
his
28.
suggest
resulted
report,
that
in
a
the
Recommendation
7,
suppression
petitioner
to
"liberally
true
reading
of
his
1
On
request
that
construe
is
On January
petitioner's
filed
no
26,
written
response
to
on
was
trial
objects
.
.
merits
U.S.
The
the
by
on
copies
J.
Report
&
to
this
transcripts
from
state
trial
magistrate
evidence,
court
unreasonable
objects
of
the
has
record,
state
an
petitioner
the
"Butts
the
the
Magis.
before
that
that:
nothing in
based
submitted
and
.
finds
the
11.
he
noted
case
court.
judge
law,
or
failed
argument
that
a
pro
se
pleadings.
1994).
But
January
23,
litigant
Jacobi
the
rule
2012,
for an extension of time,
entitled
Blocker,
requiring
the
filed no
v.
is
Court
153
than
F.R.D.
liberal
84,
86
of
the
directing that
later
a
construction
liberal
granted
to
petitioner's
the petitioner's
February
16,
2012.
ECF
the
petitioner
officer,
at
a
testimony
of
14.
2
and
findings
petitioner."
written objections be
No.
Court
that
No.
further
It
Va.
ECF
judge
facts."
hearing
presented by the
(E.D.
and the
the
noting
The
the
respondent
magistrate
decision
of
his
The
adjudication
determination
statement,
filed
judge.
the
objections.
presented no evidence,
to
and
to
These
transcripts
Inspector
suppression
reflect
Shadrix,
hearing,
and
the
testimony
the
interrogating
the
subsequent
Inspector Shadrix and the manager of the
convicted
of
robbing.
-
2
-
of
trial
store
the petitioner was
a
pro
£e
petitioner's
demand that
the Court
the petitioner's
Congress
with
has
pleadings
to
favor,
particularly
the
a
highly
U.S.C.
conflicting
witnesses,
credible
than
transcripts
substitute
for
28
§
court
the
a
of
its
same
judgment
for
federal
credibility
clear.
habeas
judgment,
Indeed,
credibility
observed by
the
520
Lonberger,
error
state
F.3d
459
state
U.S.
whatsoever
of
324
422,
is
standard
legal
the
credibility
state
courts
not
2008)
(1983))
to
transcripts
submitted
by
petitioner's
objections
court's
and
license
has
them.'"
Court
"But
stark
demeanor
(quoting
to
to
been
Cagle
v.
Marshall
v.
omitted).
on
the
Accordingly,
APPROVE
the
having
findings
petitioner.
based
No
the
are OVERRULED.
The Court,
the
be
no
(citation
the
Court
court.
must
by
more
submits
state
[have]
court,
now
this
a
error
trial
witnesses
trial
whose
apparent
of
state
witnesses
434
review
The
overturn
Cir.
of
where
conclusions
asking
court's
(4th
to
law in
context,
petitioner
the
but
as
weighed
and
to
habeas
trial
320,
of
far
(e)(1).
testimony,
'federal
habeas
and
The
that
so
substantive
prosecution's
court
the
redetermine
Branker,
the
petitioner.
this
the
2254(d),
testimony
finding
the
extend
deferential
findings
See
of
in
factual
state courts.
received
not
construe the evidence or
dictated
respect
does
reviewed the
and
record,
recommendations
-
3
-
does
set
hereby ADOPT AND
forth
in
the
report
of
the
United
(ECF No.
motion
(ECF
11),
to
No.
States
and
it
dismiss
1)
be
reasons
stated
judgment
be
Magistrate
is,
therefore,
(ECF
No.
DENIED
in
entered
the
in
4)
AND
this
final
order by
Clerk of this Court,
GRANTED
DISMISSED
report.
favor
filed
of
It
the
and
WITH
is
from the
judgment
entry of
such
The petitioner has
U.S.C.
§
of
issue
a certificate of
U.S.
The
322,
of
2253{c)(2).
22(b)
537
the
showing
Federal
335-36
Clerk
shall
the
denial
of
(30)
of
Therefore,
Rules
respondent's
the
petition
for
ORDERED
the
that
a
the
Appellate
appealability.
entered pursuant
of appeal with the
United States Courthouse,
within thirty
28
that
2012
respondent.
Virginia 23510,
substantial
the
9,
PREJUDICE
filing a written notice
judgment.
January
further
Norfolk,
"a
on
ORDERED that
be
The petitioner may appeal
to
Judge
600
days
Granby Street,
from the date of
failed to demonstrate
constitutional
Court,
pursuant
Procedure,
right."
to
Rule
declines
See Miller-El v.
to
Cockrell,
(2003).
mail
petitioner and to counsel
of
a
copy
record
of
this
for the
Final
Order
to
the
respondent.
Mark S. Davis
United States District Judgg
UNITED
Norfolk,
Virginia
February^ , 2012
-
4
-
STATES
DISTRICT
JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?