Alston v. Wright

Filing 32

FINAL ORDER. The Court ADOPTS and APPROVES the findings set forth in 25 Report and Recommendations. The Respondent's 18 Motion to Dismiss is GRANTED, and the 1 Petition for a Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. It is ORDERED that Judgment be entered in favor of the Respondent. The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and to counsel of records for the Respondent. Signed by District Judge Arenda L. Wright Allen on 9/22/2015. Copies mailed 9/23/2015. (jmey, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

BORIS JAMES ALSTON,

Petitioner,
Civil Action No.: 2:14-cv-327

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
claimed that he was denied effective assistance of appellate counsel under the Sixth and
Fourteenth Amendments to the United States Constitution, that the trial judge accepted Mr.
Alston's guilty plea without ensuring whether the plea was voluntary, knowing, and intelligent,
and that he was denied effective assistance of trial counsel when counsel failed to object to the
trial court acceptance of Mr. Alston's plea where the plea was not entered knowingly and
intelligently. ECF No. 31 at 4.

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 June 23,

2015, the Magistrate Judge recommended that the Court grant the Motion to Dismiss and dismiss
the Petition, finding the Petitioner's claims to be procedurally barred. ECF No. 25.

The parties were advised of their right to file written objections to the Report and
Recommendation.

Mr. Alston filed an Objection on August 10. 2015. ECF No. 30, and an

Amended Objection on August 19. 2015, ECF No. 31.
The Court, having reviewed the record and examined the objections filed by Petitioner to
the Report and Recommendation, and having made de novo findings with respect to the portions
objected to, ADOPTS and APPROVES the findings and recommendalions set forth in the

Report and Recommendation filed June 23, 2015, ECF No. 25. in its entirety as the Court's own
opinion. Accordingly, the Respondent's Motion to Dismiss. ECF No. 18. is GRANTED, and
the Petition. ECF No. 1, is DENIED and DISMISSED WITH PREJUDICE. It is 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
days from the date that 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. Cockrcll. 537 U.S. 322, 335-36 (2003).
The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and to counsel
of record for the Respondent.

It is so ORDERED.

^
Arenda L."WrightAllen *^"~~

United States District Judge

UNITED STATES DISTRICT JUDGE

Norfolk. Virginia

Date: \^pf 9-^ &&1 *