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
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