Taylor v. Clarke
Filing
38
FINAL ORDER: The Court does hereby adopt and approve the findings and recommendations set forth in the Report and Recommendation filed July 1, 2016. It is, therefore, ORDERED that petitioner's Motion to Alter or Amend Judgment (ECF No. 31) is D ENIED. The Court declines to issue any certificate of appealability pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure. Copies of Order sent as DIRECTED on 8.11.16. Signed by District Judge Mark S. Davis on 8/10/2016 and filed on 8/11/2016. (epri)
UNITED
FOR THE
STATES
DISTRICT
EASTERN DISTRICT
FILED
COURT
OF VIRGINIA
AUG 1 1 2016
Norfolk Division
CLERK. US DISTRICT COUflT
RALPH TAYLOR,
JR.,
#1064683
NOnFni.K, VA
Petitioner,
ACTION NO.
V.
HAROLD CLARKE,
2:15cv246
Director
of the Virginia Department of Corrections,
Respondent.
FINAL
This
matter
is
before
the
ORDER
court
on petitioner's
motion
to
alter or amend the judgment dismissing his previous petition for
habeas relief under 28 U.S.C.
§
2254.
{EOF No.
31).
The motion
sets forth additional arguments in support of his previous claim
that petitioner's
sentence
is unconstitutional
in light of
the
United States Supreme Court's holding that juvenile defendants may
not be sentenced to life in prison without parole for non-homicide
offenses.
Graham v.
Florida,
560 U.S.
The matter was referred to a
48,
70
(2010).
United States Magistrate Judge
for report and recommendation pursuant to the provisions of 28
U.S.C.
§
636 (b) (1) (B)
and
(C)
and
Rule
72
of
the
Rules
of
the
United States District Court for the Eastern District of Virginia.
The
Report
and
Recommendation
filed
July
1,
2016,
recommends
denying the motion to alter or amend judgment because Taylor was
not sentenced to life in prison.
In addition, his federal habeas
1
claim was filed more than one year after the rule in Graham was
announced.
Each party was advised of his right to file written
objections
to
Magistrate
Judge.
the
findings
On
and
July
recommendations
12,
2016,
the
made
court
by
the
received
petitioner's Objections to the Report and Recommendation and on
July
18,
2016
objections.
the
court
received
petitioner's
supplemental
The respondent filed no response to the objections and
the time for responding has now expired.
The
Court,
having
reviewed
the
record
and
examined
the
objections filed by petitioner to the Report and Recommendation,
and having made ^
objected
to,
does
novo findings with respect to the portions
hereby
adopt
and
approve
the
findings
and
recommendations set forth in the Report and Recommendation filed
July 1, 2016.
It is,
therefore, ORDERED that petitioner's Motion
to Alter or Amend Judgment
(ECF No.
31)
is DENIED.
Petitioner is hereby notified that he may appeal
from the
judgment entered pursuant to this Final Order by filing a written
notice
of
appeal
Courthouse,
600
with
the
Clerk
Granby Street,
of
this
Norfolk,
court.
Virginia
United
States
23510,
within
thirty (30) days from the date of entry of such judgment.
Petitioner has failed to demonstrate a substantial showing of
the denial of a constitutional right,
therefore,
the Court declines
to issue any certificate of appealability pursuant to Rule 22(b) of
the
Federal
Rules
of
Appellate
Procedure.
See
Miller-El
v.
Cockrell,
123 S.ct.
1029,
1039
(2003).
The Clerk is directed to mail a copy of this Final Order to
petitioner and provide an electronic copy of the Final order to
counsel of record for respondent.
Mark S. Davis
United States District Judge
MARK S.
DAVIS
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
August 10, 2016
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