Talbert v. Clarke

Filing 30

FINAL ORDER. It is ORDERED that 2 Motion for the Judicial Notice of Petitioner's Assertion of His Actual Innocence be DENIED; 7 Motion to Dismiss be GRANTED; and Petitioner's 1 Petition for Writ of Habeas Corpus be DENIED and DISMIS SED. It is further ORDERED that judgment be entered in favor of Respondent. The Clerk shall mail a copy of this Final Order to Petitioner and counsel of record for Respondent. Signed by Chief District Judge Rebecca Beach Smith on 2/18/2014. Copies mailed 2/19/2014. (jmey, )

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UNITED FOR THE STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division RICHARD M. TALBERT, #1150117, Petitioner, ACTION NO. HAROLD CLARKE, Dir. 2:13cvl99 VDOC, Respondent, FINAL Petitioner, Petition § 2254 of for a Writ (ECF No. 28 of convictions County of Virginia Habeas Assertion U.S.C. violation of a inmate, Corpus has pursuant submitted to 28 U.S.C. of § 2254 (ECF federal on March Middlesex, His No. rights 22, 2010, for Actual 2). Innocence The pertaining in the speeding, Petition to Circuit refusal in Accordance to alleges Petitioner's Court for submit to blood/breath test, driving under the influence, and assault. a result of a 1) , along with a Motion for the Judicial Notice Petitioner's with previously ORDER the convictions, Petitioner was sentenced to the a As serve three years and nine months in the Virginia penal system. The matter was referred to a United States Magistrate Judge pursuant to and Rule 72 the of provisions of the Rules of the 28 U.S.C. United § 636(b)(1)(B) States District and Court (C) for the Eastern District of Virginia for report and recommendation. The Report and recommends actual that Petitioner's innocence granted, denied, was Recommendation, be denied, Petitioner's filed motion January for Respondent's 27, judicial motion petition for writ of notice to dismiss habeas and the claims be dismissed with prejudice. advised of his right to file written findings and recommendations made by February 6, 2014, 2014, corpus of be be Each party objections to the Magistrate Judge. the On the court received Petitioner's objections to ECF No. 29. The court makes a de the Report and Recommendation. nova review with respect to these objections. Petitioner's enforcement objections officer's focus failure to primarily give on Miranda the warnings law to Petitioner prior to requiring Petitioner to take a breath test. Obj. 5-14. As stated Petitioner raised this issue in Claims (109)-(112). in the Report and Recommendation, these claims are procedurally defaulted. Report and Recommendation 15-16. Further, to raise counsel, procedural Petitioner argues his appellate counsel's failure this issue and constitutes default. on Obj. appeal was "cause" 17-19. ineffective to excuse Appellate assistance Petitioner's counsel discretion to determine the issues to raise on appeal. Barnes, 463 U.S. 745, 751-52 (1983). 2 of has the Jones v. As discussed in the Report and Recommendation, the court Virginia reasonably applied this case, finds that the holding the Supreme Jones in v. of Barnes to and Petitioner has not shown he was denied effective assistance of appellate counsel under Strickland v. 466 Court U.S. 668 (1984). Report and Washington, Recommendation 26-27. Consequently, appellate counsel's failure to raise the issue on appeal not does constitute "cause" to excuse Petitioner's procedural default. Murray v. Carrier, All U.S. 478, 488 (1986). Next, Petitioner Recommendation failed correctly to address Petitioner's form petition. Obj. hearing court. Form defaulted, to litigate Pet. 7. his Report (2) , In Ground raised (2), Petitioner (2), Amendment however, claim is § 8.01-675.3, see also Dorsey v. This court cannot Angelone, consider 544 and as a successive 298 (1989) . procedurally Accordingly, defaulted. that Teague v. Ground Additionally, 3 S.E.2d 350, claims procedurally defaulted in state court. 288, state procedurally petition under Virginia Code § 8.01-654 (B) (2) . See Va. 2001). in and any attempt to raise it now would be barred as untimely under Virginia Code 5A:6; in because it was not brought as a separate claim in the state courts, R. and when he was denied a full and Fourth Ground the Ground 17. asserts he was denied due process, fair notes the (2) Sup. 352 would Lane, is court Ct. (Va. now be 489 U.S. DENIED notes as that review of Powell, facts the 428 to Fourth U.S. 465 support Amendment (1976), his claim because contention is barred Petitioner that he opportunity for full and fair litigation of by has did Stone v. offered no not have the the claim in state court. The court, having reviewed the record and examined the objections filed by Petitioner to the Report and Recommendation, and having made objected to, novo findings de does hereby adopt with respect and approve to the the portions findings and recommendations set forth in the Report and Recommendation filed January 27, Motion DENIED; for 2014. It Judicial is, Notice therefore, of Actual Respondent's Motion to Dismiss ORDERED that Petitioner's Innocence (ECF No. (ECF 7) and Petitioner's petition for writ of habeas corpus be DENIED and DISMISSED. No. be 2) be GRANTED; (ECF No. 1) It is further ORDERED that judgment be entered in favor of Respondent. Specifically, Grounds (1) and (2) are DENIED because were not raised before the Supreme Court of Virginia, they and would be procedurally defaulted in state court if raised now, and thus Grounds (1) and (2) are simultaneously exhausted and procedurally defaulted. Claims (48), claim (1) through (39), claim (40) (a) , claims (49)(a), claims (50) 4 through (67), (41) through claims (69) through (71), claim (81), claim (84), claim (87)(a), claim (89), claim (92) (a) , and claims the claims (100) through (112) are DENIED because are procedurally defaulted, and Petitioner's actual innocence claim does not provide a gateway through which this court can review his claims that were procedurally defaulted in state court. Claims (85), (97) (40)(b), (86), (49)(b), (87) (b), through (99), (88), and (75) through (90), (80), (92) (b), (83), through (93) (82), (95), (113)1 are DENIED because the Supreme Court of Virginia's dismissal of these ineffective assistance of counsel claims was not contrary to or an unreasonable application of Strickland, and did not rest upon an unreasonable finding of facts. Petitioner has of the court denial of declines pursuant Procedure. to See a to Rule failed to demonstrate constitutional issue 22(b) Miller-El any of v. a right substantial and, certificate the Federal Cockrell, therefore, of Rules 537 showing U.S. the appealability of Appellate 322, 335-36 (2003) . Petitioner is hereby notified that he may appeal from the judgment entered pursuant to this Final written notice of appeal with the Clerk of Order by filing this court, 1 There are no substantive claims in the petition numbered 68, 72-74, 96. a United 91, or States Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within 30 days from the date of entry of such judgment. The Clerk shall mail a copy of this Final Order Petitioner and counsel of record for Respondent. M. -m Rebecca Beach Smith Chief United States District Judge Norfolk, Virginia February \Q^ , 2014 to

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