Robbins v. Circuit Court of Virginia Beach

Filing 18

FINAL ORDER. It is ORDERED that Petitioner's objections to the Report and Recommendation are OVERRULED. The 16 Report and Recommendation is ADOPTED, and the Respondent's 5 Motion to Dismiss is GRANTED. 9 Motion for Leave to File Amend ed Petition and 13 Motion to Amend are DENIED because the amendments proposed in both motions are futile are noted with approval. The 1 Petition is DENIED and DISMISSED. It is further ORDERED that Judgment be entered in favor of Respondent. Signed by District Judge Arenda L. Wright Allen on 1/27/2017. Copies mailed 1/27/2017. (jmey, )

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

JAN 3 0 2017
Cl-ERK. US DiSTfltCT COURT

CHRISTIAN EUGENE ROBBINS,

NO^=:OLK. VA

Petitioner,
ACTION NO.

V.

2:15cv542

HAROLD W. CLARKE,

Director, Virginia Dept. ofCorrections,
Respondent.

FINAL ORDER

Petitioner, a Virginia inmate, through his attorney submitted a petition pursuant to 28
U.S.C. § 2254. ECF No. 1. The Petition alleges violations of federal rights pertaining to
Petitioner's conviction in the Circuit Court for the City of Virginia Beach for Driving Under the
Influence, second offense within less than five years after the first offense. As a result of the

conviction, Petitioner was sentenced on February 12, 2013, to serve twenty days in jail and a
suspended sentence of 345 days. This sentence expired no later than February 2014, well before
the Petition was filed on December 14, 2015.

The matter was referred to a United States Magistrate Judge 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 for report and recommendation.

The Report and

Recommendation filed December 1, 2016, recommends dismissal of the petition. ECF No. 16.
Each party was advised of the right to file written objections to the findings and recommendations

made by the Magistrate Judge. On December 15,2016, the CourtreceivedPetitioner's objections
to the Report and Recommendation. ECF No. 17.

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 recommendations set forth in the Report and
Recommendation filed December 1, 2016.

A review of Petitioner's objections reveals a

fundamental disagreement with the sound reasoning presented in the Report and Recommendation
regarding Petitioner's "out of custody" status. The Report and Recommendation acknowledged
that reliance upon the use of habeas corpus petitions in the United States is not restricted to
situations only in which a petitioner is in physical custody.

ECF 16 at 5, citing Jones v.

Cunningham, 371 U.S. 236, 239 (1963). The Report and Recommendation reaches the sound
conclusion, however, that a purported petitioner is not in custody when the purported petitioner's
challenged sentence has expired at the time that the purported petition is filed. Id., citing Maleng

V. Cook, 490 U.S. 488, 491 (1989).

Petitioner's continued assertions that this analysis is

compromised by theories regarding the potential for revocation if he failed to pay fines is
unpersuasive. Likewise, after de novo review, Petitioner's other objections are found to be

without merit. The Report and Recommendation is well-reasonedand adopted in its entirety.
Therefore, the petition is DENIED and DISMISSED. It is fiirther ORDERED that

Judgment be entered in favor of Respondent. Petitioner has failed to demonstrate "a substantial

showing of the denial of a constitutional right,"and this Court declines to issueany certificate of
appealability pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure. See Miller-El
V. Cockrell, 537 U.S. 322,335-36 (2003).

Petitioner may appeal fi-om the Judgment entered pursuant to this Final Order by filing a

writtennoticeofappeal with the Clerkofthis Court,United StatesCourthouse, 600 Granby Street,

Norfolk, Virginia 23510, within thirty days fi*om the date of entryof such Judgment.

CONCLUSION

For the reasons stated herein and presented comprehensively in the Report and
Recommendation, Petitioner's objections (EOF No. 17) are OVERRULED. The Report and
Recommendation (EOF No. 16) is ADOPTED, and the Respondent's Motion to Dismiss (EOF

No. 5) is GRANTED. The Magistrate Judge's rulings that Petitioner's Motion for Leave to
Amend Petition (EOF No. 9) and "Motion (Unopposed) to Amend Previously Filed (April 18,
2016) 'Motion for Leave to Amend Petition and Memerandum [sic] In Support Thereof" (ECF
No. 13) are DENIED because the amendments proposed in both motions are futile are noted with

approval. The Petition (ECF No. 1) is DENIED and DISMISSED WITH PREJUDICE.

The Clerk shall forward a copy of this Final Order to counsel for Petitioner and counsel of
record for Respondent.

Arenaa l. \Wi§hi AJJe^

^"'ted Slates Dlitngj^e
ArendaL. Wright Allen
United States District Judge
Norfolk, Virginia

January^? , 2017