Hilton v. Director of the Department of Correction

Filing 13

FINAL ORDER. It is ORDERED that 5 Motion to Dismiss be GRANTED, and the 1 Petition for Writ of Habeas Corpus be DENIED and DISMISSED with prejudice. It if further ORDERED that judgment be entered in favor of respondent. Signed by District Judge Mark S. Davis on 2/16/2017. Copies mailed 2/17/2017. (jmey, )

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

TAVON HILTON,

#1539859,

Petitioner,
V.

ACTION NO.

2:16cvl35

DIRECTOR OF THE DEPARTMENT OF

CORRECTION,

Respondent.

FINAL ORDER

Petitioner,
for a

after

Virginia inmate,

submitted a pro se petition

writ of habeas corpus pursuant to 28 U.S.C.

No. 1.
under

a

the

Double Jeopardy Clause of

his

first
to

Following

the

December

17,

a

prosecution
second

ended

prosecution

second prosecution,
2014

in

the

Circuit

wounding,

and four counts of use of a
As

a

result

in
for

Court

attempted

felony.

robbery,

the

carjacking,

of

the

Fifth Amendment
a

mistrial,
the

petitioner

robbery,

a

ECF

Petitioner alleges the state violated his federal rights

subjected

of

§ 2254.

for

same

was

when,

he

offenses.

convicted

Henrico

attempted

was

County

on
of

malicious

firearm in the commission

convictions,

petitioner was

sentenced to serve 63 years in the Virginia penal system.

The matter was referred to a
pursuant

to

the provisions

and Rule 72

of

the Rules

of

United States Magistrate Judge
and

(C)

the United States District Court

of

28

U.S.C.

§

636(b)(1)(B)

for

the Eastern District of Virginia for report and recommendation.
The

report

recommends
granted,

and

that

recommendation,

respondent's

filed

motion

and the petition for a

to

writ

December

dismiss,

of habeas

ECF

7,

2016,

No.

corpus,

5,

be

ECF No.

1, be denied and dismissed with prejudice.
Each

party

was

objections

to

Magistrate

Judge.

petitioner's
No.

the

advised

findings

On

of

December

objections

to

the

to

file

written

recommendations

and

his

made

by

22,

right

2016,

the

report

and

the

record

Court

the

received

recommendation.

ECF

12.

The

Court,

having

reviewed

and

examined

the

objections filed by petitioner to the report and recommendation,
and having made

objected

to,

de novo

does

findings

It

5,

ECF

1,

be

the

ORDERED that respondent's motion to dismiss,

be granted,

No.

approve

the portions

recommendations set forth in the report and recommendation.

No.

and

to

and

therefore,

adopt

respect

findings

is,

hereby

with

ECF

and the petition for a writ of habeas corpus,

denied

and

dismissed

with

prejudice.

It

is

further ORDERED that judgment be entered in favor of respondent.

Petitioner has
of

the

Court

denial

of

declines

pursuant
Procedure.

to

failed to demonstrate "a substantial showing
a

constitutional

to

Rule
See

issue
22(b)

any
of

Miller-El

and

certificate

the

v.

right,"

Federal

Cockrell,

therefore,

of

appealability

Rules
537

the

of

U.S.

Appellate

322,

335-36

(2003).

Petitioner is hereby notified that he may appeal
judgment

entered

pursuant

written notice of
States

appeal

Courthouse,

600

to

with

Granby

this

Final

Order

the Clerk of
Street,

this

Norfolk,

by

from
filing

the
a

Court,

United

Virginia

23510,

within 30 days from the date of entry of such judgment.
The

Clerk

shall

mail

a

copy

of

this

Final

Order

petitioner and counsel of record for respondent.
Mark S. Davis

United States District Judge
Mark S.
UNITED STATES

Norfolk, Virginia
February
, 2017

Davis

DISTRICT JUDGE

to