Brown v. Clarke

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 5 Motion to Dismiss filed by Harold Clarke, 12 Report and Recommendations. The court does hereby adopt the findings and recommendations set forth in the Report and Recommendation filed November 16, 2 012, and it is therefore ORDERED that respondent's Motion to Dismiss be GRANTED, and that the petition be DENIED and DISMISSED with prejudice. It is further ORDERED that judgment be entered in favor of respondent. Signed by District Judge Rebecca Beach Smith on 12/20/2012; filed and copies distributed 12/21/2012. (bnew)

UNITED
FOR

THE

STATES

DISTRICT

EASTERN DISTRICT

OF

FILED

COURT

VIRGIN :a

Norfolk Division

DOUGLAS MICHAEL

BROWN,

JR.,

CLERK, US DISTRICT COURT

#1006008,

NORFOLK, VA

Petitioner,
Civil

v.

HAROLD

Action No.

2:12cvll7

CLARKE,

Director Virginia Department
Of Corrections,

Respondent.

FINAL

This matter was

ORDER

initiated by petition for a writ

corpus under 28 U.S.C. § 2254.

of

habeas

The petition alleges violation of

petitioner's constitutional rights pertaining to his conviction of
grand larceny in the Circuit Court of Colonial Heights, as a result
of which he was sentenced to serve 20 years in prison.

The petition was referred to a United States Magistrate Judge
for report

and

recommendation pursuant

to

the

provisions

of

28

U.S.C. § 636(b)(1)(B)

and (C) and Local Civil Rule 72 of the Rules

of

District

the

United

Virginia.
November

States

Court

for

the

Eastern

District

of

The Magistrate Judge's Report and Recommendation filed
16,

2012

recommends

dismissal

prejudice.

Each party was advised of

objections

to

Magistrate

Judge.

the

findings
On

and

December

of

his

the

right

petition

to file written

recommendations
3,

2012,

the

with

made
court

by

the

received

petitioner's Objections to the Report and Recommendation.

respondent filed no reply to the Objections,

The

and the time for

responding has now expired.
The court does hereby adopt the findings and recommendations
set forth in the Report and Recommendation filed November 16, 2012,
and it is therefore ORDERED that respondent's Motion to Dismiss be
GRANTED,

and

prejudice.

that

the

petition

be

DENIED

and

DISMISSED

with

It is further ORDERED that judgment be entered in favor

of respondent.

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.
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.

v. Cockrell,

123 S.Ct.

1029,

See Miller-El

1039 (2003).

The Clerk shall mail a copy of this Final Order to petitioner
and to counsel of record for respondent.

JtsL

Rebecca Beach Smith

Chief

United States District Judge

^.

-£§>-

REBECCA BEACH SMITH

CHIEF UNITED STATES

Norfolk, Virginia

ft*C£i«NteRQB. , 2012

DISTRICT JUDGE