Burnett v. Clarke

Filing 11

FINAL ORDER. The Court does hereby ADOPT and APPROVE the 9 Report and Recommendation filed December 5, 2016. It is, therefore, ORDERED that the Respondent's 5 Motion to Dismiss, be GRANTED, and that the 1 Petition for Writ of Habeas Corpus be DENIED and DISMISSED WITH PREJUDICE. It is ORDERED that judgment be entered in favor of the Respondent. Signed by District Judge Mark S. Davis on 1/20/2017. Copies mailed 1/20/2017. (jmey, )

UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

RICO LATRELL BURNETT,

Petitioner,
V.

ACTION NO.

HAROLD W.

CLARKE,

2:16CV177

Director,

Virginia Dept. of Corrections,
Respondent.

FINAL ORDER

Petitioner,

a Virginia inmate,

petition, pursuant to 28 U.S.C.

through counsel,

§ 2254. ECF No. 1.

submitted a
The Petition

alleges violations of federal rights pertaining to Petitioner's
convictions in the Circuit Court for the City of Hampton for attempted

capital murder of a police officer, use of a firearm in an attempted
capital murder,

driving,

hit and run,

and felony eluding.

possession of marijuana,

As a

result of

reckless

the convictions,

Petitioner was sentenced to and is serving seventy-five years for
attempted capital murder of a police officer and a $100,000 fine,
three years for use of a firearm in the attempted capital murder,
seven years for hit and run, thirty days for possession of marijuana

and a $200 fine, twelve months for reckless driving and a $2,500 fine,
and five years for felony eluding.
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
Local Civil 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 5, 2016, recommends
dismissal of the Petition.

his

right

to

file

ECF No. 9.

written

Each party was advised of

objections

to

recommendations made by the Magistrate Judge.
the

Court

received

Recommendation,

Petitioner's

ECF No. 10.

findings

and

On December 19, 2016,

objections

which objections repeat

original Petition.

the

to

the

Report

and

the claims made in the

The Respondent has not responded

to the Petitioner's objections and the time to do so has expired.
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, does hereby ADOPT and APPROVE the findings and recommendations
set forth in the Report and Recommendation filed December 5, 2016.
It is, therefore, ORDERED that the Respondent's Motion to Dismiss,
ECF No.

5, be GRANTED, and that the Petition,

and DISMISSED WITH PREJUDICE.

ECF No.

l, be DENIED

It is further ORDERED that judgment

be entered in favor of Respondent.
2

The Petitioner has failed to demonstrate "a substantial showing
of the denial of a constitutional right," and therefore, the Court
declines to issue any certificate of appealability pursuant to Rule

22{b) of the Federal Rules of Appellate Procedure.
V.

Cockrell,

537 U.S.

322,

335-36

See Miller-El

(2003).

Petitioner is hereby notified that he may appeal

from the

judgment entered pursuant to this Final Order by filing a written
notice

of

Courthouse,

appeal

600

with

the

Clerk

Granby Street,

of

this

Norfolk,

court.

United

States

Virginia 23510,

within

thirty (30) days from the date of entry of such judgment.
The Clerk shall mail a copy of this Final Order to Petitioner's
counsel and counsel of record for Respondent.
Mark S. Davis

United States District Judge
MARK

S.

DAVIS

UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

January ao , 2017