Dunlap v. Wilson

Filing 15

FINAL ORDER. It is ORDERED that the Court ADOPTS and APPROVES the Magistrate Judge's 13 Report and Recommendation as the Court's own opinion, except that the Court finds it unnecessary to make a finding that the Judgment and Commitment Or der is ambiguous as the rule in this circuit is that the oral pronouncement of the sentence controls. It is ORDERED that the 1 Petition for a Writ of Habeas Corpus be DENIED and DISMISSED with PREJUDICE and further ORDERED that judgment be entered in favor of Respondent. The Clerk is DIRECTED to forward a copy of this Order to Petitioner and counsel of record for Respondent. Signed by District Judge Mark S. Davis on 8/8/2017. Copies mailed 8/9/2017. (jmey, )

FILED
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGI NEA
Norfolk Division

AU6 - 8 2017
CLERK, US D'STRICT COURT

TRACY CALVIN DUNLAP JR.,

NOn-Ol.K, VA

#20701-057

Petitioner,
Civil Action No.:

V.

ERIC D.

WILSON,

2:16cv349

Warden

Respondent.

FINAL ORDER

Before the Court is a Petition for a Writ of Habeas Corpus filed

pursuant to 28 U.S.C. § 2241, ECF No. 1.

In his Petition, the pro

se Petitioner seeks judicial review by this court to stop the Bureau
of Prisons from collecting funds from Petitioner's account to pay
his restitution ordered by the sentencing court.

On October 18, 2016, the Respondent filed a Motion to Dismiss
the Petition, ECF No. 5. The Petitioner filed a response on November
14,

2016,

ECF No.

9.

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
Rule

72

of

the

Rules

of

the

United

States

District

Court

for

Eastern District of Virginia for report and recommendation.
Report

and

Recommendation

dismissal of the petition.

filed

on

ECF No. 13.

June

26,

2017,

the

The

recommends

Each party was advised of

his

right

to

file

written

objections

recommendations made by the Magistrate Judge.
Court

received

Recommendation.

The

Petitioner's
ECF No.

Court,

having

objections

to

the

findings

and

On July 17, 2017, the
to

the

Report

and

examined

the

14.

reviewed

the

record

and

objections filed by Petitioner to the Report and Recommendation, and
having made de novo findings with respect to the portions objected
to, agrees with the Report and Recommendation on the grounds stated

by the Magistrate Judge and ADOPTS

and APPROVES

the Magistrate

Judge's Report and Recommendation filed on June 26,

2017,

as the

Court's own opinion, except that the Court finds it unnecessary to

make a finding that the Judgment and Commitment Order is ambiguous
as the rule in this circuit is that the oral pronouncement of the
sentence controls.

See Rakes v. United States, 309 F.2d 686, 687-88

(4th Cir. 1962); United States v. Parris, 639 F. App'x 923, 927 (4th
Cir. 2016) .

In this case, the oral sentence is clear that Petitioner

"has a financial obligation" as provided in 28 C.F.R. § 545.11.

It

is, therefore, ORDERED that the Petition, ECF No. 1, be DENIED and

DISMISSED with PREJUDICE and further ORDERED that judgment be entered
in favor of Respondent.

The Petitioner is hereby notified that he may appeal from the

judgment entered pursuant to this Final Order by filing a written
notice of appeal with the Clerk of the Court at the Walter E. Hoffman

United States Courthouse,

600

Granby Street,

Norfolk,

Virginia

23510, within thirty (30) days from the date judgment is entered.
Because

the

Petitioner

has

failed

to

demonstrate

a

substantial

showing of the denial of a constitutional right pursuant to 28 U.S.C.
§ 2253 (c) and Federal Rule of Appellate Procedure 22 (b) (1) , the Court
declines to issue a certificate of appealability.
Cockrell,

The

537 U.S.

Clerk

is

322,

335-36

DIRECTED

to

See Miller-El v.

(2003).

forward

a

copy of

this

Order to

Petitioner and counsel of record for Respondent.
It is

so ORDERED.

Mark S. Davis

United States District Judge
MARK

UNITED

Norfolk, Virginia

Date: AwZJjmSV €j

STATES

S.

DAVIS

DISTRICT JUDGE