Sampson v. Clarke

Filing 18

FINAL OPINION AND ORDER. 14 Motion to Amend/Correct is GRANTED as a supplemental briefing to the petition. 5 Motion to Dismiss is GRANTED, and the 1 Petition for a Writ of Habeas Corpus is DENIED and DISMISSED. Signed by Chief District Judge Rebecca Beach Smith on 9/23/2016. Copies mailed 9/23/2016. (jmey, )

UNITED

STATES DISTRICT COURT

FILED

FOR THE EASTERN DISTRICT OF VIRGINIi.

Norfolk Division

SEP 2 3 2016
KEITH SAMPSON, #1132316,

CLERK. US DISTRICTCOURT
NOHFOi.K. VA

Petitioner,
ACTION NO.

V.

HAROLD W.

CLARKE,

2:15cv370

Director,

Virginia Department of Corrections,
Respondent.

FINAL OPINION AND

This matter was

ORDER

initiated by Petition for

Corpus under 28 U.S.C.

§

2254

("petition"),

a

Writ of Habeas

submitted pro se by

petitioner Keith Sampson. The petition alleges violation of federal
rights

pertaining

to

petitioner's

convictions

in

2012,

in

the

Circuit Court of the City of Chesapeake, Virginia, of two counts of
robbery, two counts of using a firearm in commission of a robbery,

and one count of being a felon in possession of a firearm.
result of the convictions,

As a

petitioner was sentenced to serve 31

years in prison.

The matter was referred to a
for

report

U.S.C.

§

and

recommendation

636(b)(1)(B)

and

United States Magistrate Judge

pursuant

(C)

and

Rule

to
72

the
of

provisions
the

Rules

of
of

28
the

United States District Court for the Eastern District of Virginia.
The

Report

and

Recommendation

("R&R")

filed

recommends denial and dismissal of the petition.

July

15,

2016,

Each party was

advised of his right to file written objections to the findings and

recommendations made by the magistrate judge.

On August 15, 2016,

the court received the petitioner's Objection to the R&R.

16).

On

August

22,

2016,

the

court

received

a

(ECF No.

handwritten

submission from the petitioner which it construed as a Supplemental
Objection to the R&R (ECF No. 17). The respondent filed no response

to either set of objections and the time for responding has now

expired. The matter is ripe for final review by this court.
I.

Petitioner
June 23,

2016

filed

a

(ECF No.

pleading entitled "Motion to Amend"
14),

which the R&R recommended granting.

However, upon review, the pleading is not,
amend the petition,

on

in effect, a motion to

as it contains no new grounds for relief. To

the extent that the petitioner filed a pleading labeled "Motion to
Amend,

there are not any new grounds raised by the pleading that

are not already raised in the petition. The grounds raised by the
petition are as follows:

violation of Due Process under the Fifth

and Fourteenth Amendments based on insufficient evidence; violation

of right to a fair trial under the Sixth and Fourteenth Amendments
based

on

systematic

assistance

information;

of

counsel

in

based

on

jury

selection;

failure

to

ineffective

seek

relevant

ineffective assistance of counsel based on failure to

1 Similarly,
court

exclusion

construed

the petitioner entitled the document that this
as

"Motion to Amend."

a

"Supplemental

ECF No.

17 at

1.
2

Objection"

to

the

R&R as

a

investigate

and

interview

ineffective

assistance

crucial

based

on

witnesses

failure

discredit the state's scientific evidence;

of

counsel

based

challenging

an

on

failure

indictment;

to

and

provide

to

in

the

case;

investigate

and

ineffective assistance

an

violation

adequate

of

Due

defense

Process

by

with

respect to a re-numbered indictment. ECF No. 1. The grounds raised

by

the

pleading

entitled

"Motion

to

Amend"

are

as

follows:

ineffective assistance of counsel under the Sixth Amendment based

on failure to challenge a defective indictment and violation of Due
Process

under

defective

the

Sixth

indictment.

and

ECF No.

Fourteenth

Amendments

based

on

a

14.

The phrasing of the arguments in the "Motion to Amend" may be
somewhat different, but essentially the petitioner makes the same

arguments relating to the allegedly defective indictment in the
"Motion to Amend" that he makes in the petition.
Amend"

simply

defective

about

elaborates

indictment,

re-numbering

June 19,

2012.

what

the

and mentions

the

ECF No.

on

indictment
14

at

2-3.

petitioner

that

at

The "Motion to

his

there

alleges

was

a

was

discussion

sentencing hearing

However,

both

the

a

"Motion

on
to

Amend" and the petition assert that the petitioner was denied his
rights to Due Process and Effective Assistance of Counsel based on

his attorney's failure to challenge the numbering of the indictment
following a

such,

the

mistrial.

ECF No.

"Motion to Amend"

1 at 16-18;

does

not

ECF No.

14 at 2-4.

raise any new grounds

As

for

relief not already raised in the petition. However,

to the extent

that the "Motion to Amend" adds additional argument to the grounds
already raised in the petition, the court in ruling herein, and the

magistrate judge as addressed in the R&R, ^ have considered these
arguments.

Accordingly,

the

"Motion

to Amend"

(ECF No,

14)

is

GRANTED as a supplemental briefing to the petition.^
II.

The

court,

objections

having

reviewed

the

record

and

filed by the petitioner to the R&R,

examined

the

and having made

de novo findings with respect to the portions objected to,

does

hereby adopt and approve the findings and recommendations set forth

in

the

R&R

filed

July

15,

respondent's Motion to Dismiss

2016

(ECF

(ECF No.

No.
5)

15).

Accordingly,

is GRANTED,

petitioner's Petition for a Writ of Habeas Corpus

and the

(ECF No. 1)

is

DENIED and DISMISSED.

Petitioner is

hereby notified that he may appeal

from the

judgment entered pursuant to this Final Opinion and Order by filing
a written notice of appeal with the Clerk of this court.

United

States

23510,

Courthouse,

within thirty (30)

600

Granby

Street,

Norfolk,

Virginia

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

2 See R&R at

38-39.

3 See supra note 1.

to issue any certificate of appealability pursuant to Rule 22(b) of
the

Federal

Cockrell,

Rules

123 S.Ct.

of

Appellate

1029,

1039

Procedure.

See

Miller-El

v.

(2003).

The Clerk is directed to mail a copy of this Final Opinion and
Order to petitioner and to provide an electronic copy of the Final
Opinion and Order to counsel of record for respondent.

Rebecca Beach Smith

liefJudge
REBECCA BEACH
CHIEF

September

,

2016

JUDGE

SMITH