Dumas v. Clarke

Filing 42

FINAL ORDER. The Court hereby ADOPTS and APPROVES the 41 Report and Recommendation in its entirety as the Court's own opinion. Therefore, Respondent's 5 Motion to Dismiss is DENIED; the 1 Petition is GRANTED; and the Petitioner's sentence in the Circuit Court for the City of Norfolk is VACATED in its entirety and his case is REMANDED to the state circuit court for disposition of his conviction in accordance with Miller and Montgomery. The Clerk shall enter judgment in favor of the Petitioner pursuant to this Final Order. Signed by Chief District Judge Rebecca Beach Smith on 8/10/2017. Copies mailed 8/10/2017. (jmey, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division lyiARLIN MAURICE DUMAS, Petitioner, V. ACTION NO. 2:13-CV-398 HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent. FINAL ORDER Before the Court is a filed pursuant Petition, his to Diiinas, sentence, convicted in for counts the the of U.S.C. by counsel, after capital murder, two 28 Petition for a he 2254. guilty Court on for malicious wounding, two On July 18, of sentenced Norfolk without parole for capital murder, May the abduction. City EOF No. 1. In his challenged the constitutionality of pled Circuit § Writ of Habeas Corpus 19, City counts 1997, Dumas 1997, of of and was Norfolk robbery, the Circuit to life in of and Court prison plus 50 years in prison for the other five convictions. In his Petition, Supreme Court's (2012) his decision announced a case, now Dumas argued in Miller v. new rule that is before the that the Alabama, United 132 S. States Ct. 2455 retroactively applicable to Court on collateral review. Specifically, Dumas argued that under Miller, his sentence of life imprisonment without parole for a homicide committed while he was under the age of eighteen violates the Eighth Amendment's prohibition on cruel and unusual punishment. The Judge Petition for report of 28 U.S.C. Rules of District §§ the of was referred to United States Virginia. entered the Respondent's with prejudice. United Motion ECF No. District The on 13, to Dismiss 9. 2014, On July 7, ECF No. 2014, ECF No. for the Judge's Report recommended 2014, Eastern the and granting Petition a Final Order was adopting the Report and judgment be entered in favor 11. Petitioner filed a Notice of Appeal to the United States Court of Appeals Circuit"). the provisions and dismissing On June 20, and ordering that of the Respondent. Court Magistrate May to Magistrate and Local Civil Rule 72 of the issued granting the Motion to Dismiss, Recommendation, States and recommendation pursuant 636(b)(1)(B)-(C), Recommendation, a 13. for On June the Fourth Circuit 15, 2016, ("Fourth the Fourth Circuit vacated the judgment of the district court and remanded the case for further proceedings opinion in Montgomery v. which held that Miller consistent Louisiana, "announced with the 136 S. Ct. a 718, substantive retroactive in cases on collateral review." 2 Supreme 732 rule ECF Nos. Court's (2016), that 19-20. is The matter was referred for a reconunended disposition to a United States Magistrate Judge, pursuant to the Court's Standing Order on Assignment Magistrate Judges of {April Certain 1, 2002), Matters for to United States further proceedings in accordance with the remand of the United States Court of Appeals for the Fourth Circuit. On July 14, 2017, ECF No. 22. the Magistrate Judge issued a Report and Recommendation recommending the Respondent's Motion to Dismiss, be the DENIED; Dumas' Circuit entirety GRANTED; Court and disposition for the City his case be REMANDED on Montgomery. right Petition be his ECF to file Recommendation. conviction No. 41. of in The written and Dumas' Norfolk to be VACATED the objections with were to its Court for Miller and advised the in in Circuit accordance parties sentence of their Report and Neither the Petitioner nor the Respondent filed objections. Despite no objections, given the import of this decision, the Court has reviewed ^ novo the Magistrate Judge's Report and Recommendation. R. Court fully See Fed. accepts Magistrate Judge, the and Report and the Civ. P. findings accordingly, Recommendation, the Court's own opinion. 72(b)(3). and Therefore, 3 recommendations hereby ECF No. After review, 41, ADOPTS in its and of the the APPROVES entirety as the Respondent's Motion to Dismiss, GRANTED; ECF No. 5, is DENIED; the Petition, ECF No. 1, is and the Petitioner's sentence in the Circuit Court for the City of Norfolk is VACATED in its entirety and his case is REMANDED to the State circuit court for disposition conviction in accordance with Miller and Montgomery. on his The Clerk shall enter judgment in favor of the Petitioner pursuant to this Final Order. For and Recommendation, the reasons stated herein, and in the Report the court declines to issue a certificate of appealability. The Clerk shall forward a copy of this Final Order to counsel of record for the Petitioner and the Respondent. I t is so ORDERED. /S/ Rebecca Beach Smith Chief Judge REBECCA BEACH SMITH CHIEF UNITED August 10, 2017 STATES DISTRICT JUDGE

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