Fitzgerald v. Clarke

Filing 14

FINAL ORDER. The Court ADOPTS and APPROVES the 13 Report and Recommendation in its entirety as the Courts own opinion. Respondents 8 Motion to Dismiss is GRANTED, and the 1 Petition for a Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJU DICE. It is ORDERED that judgment be entered in favor of Respondent. The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and counsel of record for the Respondent. Signed by Chief District Judge Rebecca Beach Smith on 1/12/2017. Copies mailed 1/12/2017. (jmey, )

FILED
IN THE

UNITED

FOR THE

STATES DISTRICT

COURT

JAN i 2 201/

EASTERN DISTRICT OF VIRGINIA

Norfolk Division
CI.EHK, U.S. DISTfllCT COL \T
NORFOLK. VA

TERRAZ LETEZ FITZGERALD,

Petitioner,
V.

ACTION NO.

HAROLD W.

CLARKE,

2:16-cv-54

Director,

Virginia Department of Corrections,
Respondent.
FINAL ORDER

Before the Court is a

(ECF

No.

1)

filed

Respondent's
convicted

motion

in

petition for a

pursuant
to

the

to

dismiss

28

U.S.C.

(ECF

Chesterfield

writ of habeas corpus

No.

§

County

while

distribute,
On June

25,

years of

in

possession

and possession of
2012,

the

of
a

Petitioner was

incarceration,

the
was

Circuit

cocaine

firearm

and

Petitioner

8).

possession of cocaine with intent to distribute,

firearm

2254,

by

Court

possession of a

with
a

for

intent

to

convicted felon.

sentenced

to

twenty-seven

with eighteen years suspended.

In his

petition, the pro se Petitioner challenges the constitutionality
of this

conviction and sentence.

The matter was referred for disposition to a

Magistrate
Federal

Judge

Rule of

pursuant

Civil

to

Procedure

28

U.S.C.

72(b),

§§

Local

United States

636(b)(1)(B)-(C),
Civil Rule

72,

and

the

April

Matters

2,

2002

Standing

to United States

Recommendation

entered

Order

on

Magistrate

on November

Assignment

Judges.

17,

of

In a

2016

{ECF

Certain

Report

No.

and

13),

the

Magistrate Judge recommended the motion to dismiss be granted,
and the petition be denied and dismissed with prejudice.

The

parties were advised of their right to file written objections

to the Report and Recommendation.

Neither

the Petitioner nor

the Respondent filed objections with the Court.

Having reviewed the record and having heard no objection,
the

Court

agrees

with

the

Report

and

Recommendation

on

the

grounds stated by the Magistrate Judge and ADOPTS and APPROVES
the Report and Recommendation

the Court's own opinion.
to dismiss
is

(ECF No.

DENIED

and

8)

(ECF No.

Accordingly,

is GRANTED,

DISMISSED

WITH

13)

in its entirety as

the Respondent's motion

and the Petition

PREJUDICE.

It

is

(ECF No.

ORDERED

1)

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

written

notice

Walter E.

Norfolk,
judgment

of

appeal

with

Hoffman United States

Virginia 23510,
is

demonstrate

entered.

a

the

Clerk

substantial

of

Courthouse,

within thirty
Because

Final Order by filing a

the

showing

(30)

the
600

days

Petitioner

of

the

Court

at

the

Granby Street,

from the date
has

failed

denial

of

to

a

constitutional right pursuant to 28 U.S.C.
Rule

of

Appellate

Procedure

22(b)(1),

issue a certificate of appealability.
537 U.S.

322,

335-36

§ 2253(c) and Federal

the

Court

declines

See Miller-El v.

to

Cockrell,

(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.
/s/

Rebecca Beach Smith
Chief Judge
Rebecca Beach Smith

Chief United States District Judge
Norfolk, Virginia
January

,

2017