Smith v. Director of the Department of Corrections

Filing 14

FINAL ORDER: granting 5 Motion to Dismiss; re 11 Report and Recommendations. It is, therefore, ORDERED that Respondent's Motion to Dismiss be GRANTED and the Petitioner's petition be DENIED and DISMISSED with prejudice. Signed by District Judge Mark S. Davis on 4/30/13 and filed 5/1/13. Copies distributed to petitioner and to counsel of record for respondent 5/1/13.(ldab, )

UNITED
FOR THE

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

RONALD DEVON SMITH,

JR.

Petitioner,
Civil Action No.

v.

HAROLD W.

2:12cv57 8

CLARKE,

Director of the Virginia
Department of Corrections
Respondent.
FINAL

ORDER

This matter was initiated by petition for a writ of habeas
corpus under 28 U.S.C.
federal

rights

§ 2254.

pertaining

The petition alleges violation of
to

petitioner's

convictions

threatening to burn or bomb on February 4, 2008,

for

in the Circuit

Court of Virginia Beach, as a result of which he was sentenced to

serve four (4) years in prison with all but one year and six months
suspended.

The matter 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

Rule

72

of

the

Rules

of

the

United States District Court for the Eastern District of Virginia.

The Report and Recommendation filed March 26, 2013, recommends

dismissal of the petition.

Each party was advised of his right to

file written objections to the findings and recommendations made by

the Magistrate Judge.

On April 11,

2013,

the Court received a

Motion to Reconsider and attached Addendum.

(ECF No.

13, and 13-1).

The Court has construed these two filings as Objections to the
Report and Recommendation.

The respondent filed no response to the objections and the

time for responding has now expired.
The

Court,

having

reviewed

the

record

and

examined

the

objections filed by petitioner to the Report and Recommendation,
and having made
objected

to,

de

findings

hereby

does

novo

adopt

with respect
and

approve

to
the

the portions
findings

and

recommendations set forth in the Report and Recommendation filed
March 26, 2013.

It is, therefore, ORDERED that Respondent's Motion

to Dismiss be GRANTED and the Petitioner's petition be DENIED and
DISMISSED with prejudice.

Petitioner is hereby notified that he

may appeal from the

judgment entered pursuant to this Final Order by filing a written
notice

of

appeal

Courthouse,

600

with

the

Clerk

Granby Street,

of

this

Norfolk,

court,

United

States

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

Cockrell,

Rules

123 S.Ct.

of

Appellate

1029,

1039

Procedure.

(2003).

See

Miller-El

v.

The Clerk shall mail a copy of this Final Order to petitioner
at his last known address,

and to counsel of record for respondent.

/s/
MARK

S.

UNITED

Norfolk,

Virginia

)<\\ 30 , 2013

DAVIS
STATES

DISTRICT JUDGE