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, )

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