Porter v. Clarke

Filing 18

FINAL ORDER adopting and approving Report and Recommendations re 15 Report and Recommendations; granting Respondent's 10 Motion to Dismiss; and that the Petition, (ECF No. 1), is DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent; noting appeal procedure. Signed by District Judge Robert G. Doumar and filed on 1/20/2015. Copy mailed to Petitioner on 1/21/2015.(rsim, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

FILED

NORFOLK DIVISION

JAN 2 0 2015
CLERK, U.S. DISTRICT COURT

JEFFREY EDWARD PORTER,

NORFOLK. VA

PETITIONER,
CIVIL ACTION NO. 2:14-cv-15
v.

HAROLD W. CLARKE, Director,

Virginia Department of Corrections,
RESPONDENT.

FINAL ORDER

This matter comes before the Court Jeffrey Edward Porter's ("Petitioner") Petition for a

Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 and the Harold W. Clark's

("Respondent") Motion to Dismiss the Petition. In his Petition, the pro se Petitioner challenges
the constitutionality of his January 5, 2012 conviction for unlawful wounding. Petitioner was
sentenced to a total of five years' imprisonment.
The matter was referred for disposition to a United States Magistrate Judge pursuant to

28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of

Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain
Matters to United States Magistrate Judges. In a Report and Recommendation filed on November
24, 2014, the Magistrate Judge recommended that the Court grant the Motion to Dismiss, finding
the Petitioner's claims to be procedurally defaulted. (ECF No. 15). The parties were advised of

their right to file written objections to the Report and Recommendation. On January 7, 2015, the

Petitioner filed his objection to the Report and Recommendation. (ECF No. 17). The Respondent

did not file an objection, and the time to do so has expired.

Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court has reviewed de novo the

Magistrate Judge's Report and Recommendation and the Petitioner's objections. After review,
the Court fully accepts the findings and recommendations of the Magistrate Judge, and
accordingly, hereby ADOPTS and APPROVES the Report and Recommendation, (ECF No.

15), and it is therefore ORDERED that the Respondent's Motion to Dismiss, (ECF No. 10), is
GRANTED, and that the Petition, (ECF No. 1), is DENIED and DISMISSED WITH
PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent.

The Petitioner is hereby notified that he may appeal from the judgment entered pursuant

to this Final Order by filing a written notice of appeal with the Clerk of the Court at the Walter
E. Hoffman United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within thirty

(30) days from the date judgment is entered. Because the Petitioner has failed to demonstrate a
substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) and

Federal Rule of Appellate Procedure 22(b)(1), the Court declines to issue a certificate of
appealability. See Miller-El v. Cockrell. 537 U.S. 322, 335-36 (2003).
The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and counsel of
record for the Respondent.
IT IS SO ORDERED.

Robert G. D

Senior UniteiLfiWft* n*trict judge
UNITED STATES DISTRICT JUDGE

Norfolk, VA
January K), 2015