McCroskey v. Clarke

Filing 29

FINAL ORDER. The Court does hereby ADOPT and APPROVE 24 REPORT AND RECOMMENDATIONS. It is, therefore, ORDERED that 14 Motion to Dismiss be GRANTED, and that 1 Petition for Writ of Habeas Corpus be DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent. 25 Motion for Discovery and 27 Motion for Extension are DISMISSED as moot. Signed by District Judge Mark S. Davis on 3/19/2014. Copies mailed 3/19/2014. (jmey, )

UNITED STATES DISTRICT COURT
FOR THE

EASTERN DISTRICT OF VIRGINIA

Norfolk Division
BENNY McCROSKEY,

Petitioner,
v.

ACTION NO.

2:13cvl68

HAROLD W. CLARKE, 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. § 2254 and the Respondent's Motion
to Dismiss the Petition.

In his Petition,

the pro se Petitioner

alleges violations of his constitutional rights in relation to

his convictions for second-degree murder and grand larceny on
February 25, 2011 after he entered Alford pleas to both charges,
in the Circuit Court for Spotsylvania County, which resulted in
a twenty-five (25) year sentence of active 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)

and (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 filed on January 16,

2014 recommends dismissal of

the Petition with prejudice.

The parties were advised of their

right to file written objections to the Report and
Recommendation.

On January 31, 2014,

Petitioner's initial objections,

in addition to a motion for

discovery and expansion of the record,
February 6, 2014,
objections,

the Court received the

ECF Nos.

25,

26.

On

the Court received the Petitioner's additional

ECF No.

28, with a motion for extension of time to

deem those additional objections timely filed,

ECF No.

27.

The

Respondent has not filed a response to the Petitioner's

objections, and the time to do so has expired.
The Court, having reviewed the record and examined all of

the objections, ECF Nos.

26, 28, filed by the Petitioner to the

Report and Recommendation, 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 January 16, 2014,

ECF No. 24.

It is,

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

14, be GRANTED,

and that the Petition,

and DISMISSED WITH PREJUDICE.

ECF No.

It is further ORDERED that

judgment be entered in favor of the Respondent.
the pending motions,

ECF Nos.

1, be DENIED

Accordingly,

25, 27, are DISMISSED as moot.

The Petitioner may appeal from the judgment entered
pursuant to this Final Order by filing a written notice of
2

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,
the Court declines to issue any certificate of appealability
pursuant to Rule 22(b)
Procedure.

of the Federal Rules of Appellate

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.

>M<^
Mark S. Davis

United States District Judge
MARK S.

DAVIS

UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

March

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, 2014