Fosnaught v. Director, Virginia Dep't of Corr.

Filing 19

FINAL ORDER. The Court does hereby ADOPT and APPROVE the findings and recommendations set forth in the 16 Report and Recommendation filed December 9, 2016. It is, therefore, ORDERED that the Respondent's 12 Motion to Dismiss, is GRANTED, and that the 1 Petition for a Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent. Petitioner's 17 Motion for Discovery is DENIED. Signed by Chief District Judge Rebecca Beach Smith on 1/19/2017. Copies mailed 1/19/2017. (jmey, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division
KANE ANTHONY F0SNAU6HT,

Petitioner,
V.

ACTION NO.

2:16cvll5

HAROLD W. CLARKE, Director,
Virginia Department of Corrections,
Respondent.

FINAL ORDER

Before

the Court is a

Petition for

filed pursuant to 28 U.S.C.
to Dismiss the Petition.

alleges violations
his

convictions

Attempted Robbery,

for

the

of Habeas Corpus

§ 2254 and the Respondent's Motion

constitutional

Conspiracy,

the pro se Petitioner

rights

Malicious

in relation to

Wounding,

and three counts of the Use of a

the Commission of a Felony.
Court

Writ

In his Petition,

of his

for

a

City

of

thirty-two

On August 19,

Virginia
(32)

Beach,

years

with

2013,
the

Robbery,

Firearm in

in the Circuit
Petitioner

sentenced

to

seventeen

years

suspended,

resulting in an active total sentence of fifteen

was
(17)
(15)

years incarceration in the Virginia state penitentiary.
The

Judge

for

Petition

report

of 28 U.S.C.
the

Rules

of

§§

was

referred

to

a

United

and recommendation pursuant
636(b)(1)(B)

the

United

and

States

(C)

States

to

Magistrate

the provisions

and Local Civil Rule 72 of

District

Court

for

the

Eastern

District

of

Virginia.

The

Recommendation

filed December

the

with

Magistrate

Petition

Petitioner

Petitioner's
The

filed
The

On

having

and

the

December

to

has

the

to

of

2016,

the

Report

and

responded

do

record

and

dismissal

29,

the

not

time

reviewed

Report

recommends

objections

Respondent

objections

Court,

2016,

prejudice.

timely

Recommendation.

9,

Judge's

so
and

to

has

the

expired.

examined

the

objections filed by Petitioner to the Report and Recommendation,

and having made ^
objected

to,

novo findings with respect to the portions

does

hereby

ADOPT and

APPROVE

the

findings

and

recommendations set forth in the Report and Recommendation filed
December

9,

2016.

It

is,

Respondent's Motion to Dismiss,
the Petition,

It is

ECF No.

1,

therefore,

ECF No.

12,

ORDERED

that

is granted,

the

and that

is DENIED and DISMISSED WITH PREJUDICE.

further ORDERED that

judgment be entered in favor of the

Respondent.

On December

for

Discovery,

showing

to

Gramley,

the

Rules

29,

2016,

ECF No.

establish

520

U.S.

899

Governing

"good cause" or a

§

the

17,
the

but he
need

(1997}

2254

Petitioner

for

failed

that

filed

to make a

discovery.

(reasoning,

Cases,

also

See

a

sufficient
Bracy

based on Rule

a

Motion

6(a)

petitioner must

v.
of

show

sufficient showing of the likelihood of merit

to his claim for a motion for discovery to be granted in a
2

§

2254

case).

Therefore,

Petitioner's Motion,

ECF No.

17,

is

DENIED.

The
pursuant

Petitioner
to

this

appeal with

may

Final

appeal
Order

the Clerk of

600 Granby Street,

this

Norfolk,

from

by

the

filing

court,

Virginia

judgment

a

written

entered

notice

of

United States Courthouse,

23510,

within thirty

(30)

days from the date of entry of such judgment.
The

Petitioner

has

failed

showing of the denial of a
the

Court

pursuant

declines
to

Rule

Procedure.

See

to

demonstrate

constitutional right,

issue

22(b)

to

any
the

of

Miller-El

v.

certificate
Federal

Cockrell,

a

and therefore,

of

Rules
537

substantial

U.S.

appealability
of

Appellate

322,

335-36

(2003).

The

Clerk

shall

mail

a

copy

of

this

Final

Order

to

Petitioner and to counsel of record for the Respondent.
I t is so ORDERED.
ISi

Rebecca Beach Smith

Chief Judge
REBECCA BEACH SMITH
CHIEF UNITED STATES DISTRICT JUDGE

Norfolk, Virginia
January

,

2017