Lewis v. Clarke

Filing 17

FINAL ORDER. The Court does hereby ADOPT and APPROVE the findings and recommendations set forth in the Report and Recommendation filed March 6, 2014 in its entirety as the Court's own opinion, ECF No. 13. It is, therefore, ORDERED that the Respo ndent's Motion to Dismiss, ECF No. 8, be GRANTED, and that the Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent. Signed by Chief District Judge Rebecca Beach Smith on 4/30/2014. Copies mailed 5/1/2014. (jmey, )

FILED
UNITED
FOR THE

STATES

DISTRICT

EASTERN DISTRICT

Norfolk

COURT

OF

MAY -1 2014

VIRGINIA

Division

CLERK, U.S. DIS1RICI COURT
ANTHONY

C.

__^_

LEWIS,

'•••':'

f-OLK VA

Petitioner,
ACTION

v.

HAROLD W.

CLARKE,

NO.

2:13-cv-25

Director,

Virginia Department of Corrections,
Respondent.

FINAL

ORDER

Before the Court is a Petition for a Writ of Habeas Corpus
filed pursuant to 28 U.S.C.
to Dismiss the Petition.

§ 2254 and the Respondent's Motion

In his Petition,

the pro se Petitioner

challenges the constitutionality of his 2009 conviction in the

Circuit Court for the City of Portsmouth for possession with
intent to distribute a controlled substance, third offense,
which resulted in a fifteen year sentence of incarceration in
the Virginia state penitentiary.

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)-(C),

and Local Civil Rule 72 of the

Rules of the United States District Court for the Eastern

District of Virginia. The Magistrate Judge's Report and
Recommendation entered on March 6, 2014 recommends granting the
Respondent's motion to dismiss and dismissal of the Petition

with prejudice.

The parties were advised of their right to file

written objections to the Report and Recommendation.

The Court

received the Petitioner's objections on April 7, 2014.

16.

ECF No.

The Respondent did not file a response to the Petitioner's

objections, and the time to do so has expired.
The Court,

having reviewed the record de novo and examined

all of the objections filed by the Petitioner to the Report and

Recommendation, ECF No. 16, and having made de novo findings
with respect to the portions objected to, does hereby ADOPT and

APPROVE the findings and recommendations set forth in the Report
and Recommendation filed March 6, 2014 in its entirety as the
Court's own opinion,

ECF No.

13.

It is, therefore, ORDERED that

the Respondent's Motion to Dismiss, ECF No.
that the Petition,

PREJUDICE.

ECF No.

8, be GRANTED, and

1, be DENIED and DISMISSED WITH

It is further ORDERED that judgment be entered in

favor of the Respondent.

The 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.
The Petitioner has failed to demonstrate a substantial

showing of the denial of a constitutional right, and therefore,
2

the Court declines to issue any certificate of appealability

pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure.

See Miller-El v.

Cockrell,

537 U.S.

322,

335-36

(2003) .

The Clerk shall mail a copy of this Final Order to the
Petitioner and to counsel of record for the Respondent.

It is SO ORDERED.

REBECCA BEACH

CHIEF UNITED

Norfolk, Virginia
Date

: Ou^X

SMITH

STATES DISTRICT JUDGE