Powell v. Director, Virginia Department of Corrections

Filing 19

FINAL ORDER. It is ORDERED that 11 Motion to Dismiss be GRANTED and the Petitioner's 1 Petition for Writ of Habeas Corpus be DENIED and DISMISSED with prejudice. Signed by Chief District Judge Rebecca Beach Smith on 6/16/2017. Copies mailed 6/16/2017. (jmey, )

FLED
UNITED STATES DISTRICT COURT
THE EASTERN DISTRICT OP VIRG]

JUN 1 6 2017

Norfolk Division

CLERK. US DISTRICT COURT

VINCENT CRAIG POWELL,

#1394622,

NORFOLK, VA

Petitioner,
ACTION NO.

V.

2:16cv405

DEPARTMENT OP CORRECTIONS,

Respondent.

FINAIi

This matter was

corpus under 28 U.S.C.

ORDER

initiated by petition for a

§ 2254.

writ of habeas

The petition alleges violation of

federal rights pertaining to petitioner's convictions for attempted
robbery,

conspiracy to commit robbery,

possession of a

sawed-off

shotgun, maliciously shooting into an occupied dwelling, and use of
a firearm in the commission of a felony on October 30,
Circuit

Court

of

Portsmouth.

As

a

petitioner was sentenced to serve a
with two years suspended,

result

of

2014,

the

in the

convictions,

total of 33 years in prison

leaving an active sentence of 31 years.

The matter was referred to a United States Magistrate Judge
for

Report and Recommendation pursuant

U.S.C.

§

636(b)(1)(B)

and

(C)

and

Rule

to
72

the provisions
of

the

Rules

of
of

28
the

United States District Court for the Eastern District of Virginia.
The

Report

and

Recommendation

dismissal of the petition.

filed

May

5,

2017

recommends

Each party was advised of his right to

file written objections to the findings and recommendations made by
the

Magistrate

Judge.

On

May

30,

2017,

the

court

received

petitioner's Objections to the Report and Recommendation.

The

respondent filed no response to the objections and the time for
responding has now expired.
The

court,

having

reviewed

the

record

and

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
May 5, 2017.

It is, therefore, ORDERED that Respondent's Motion to

Dismiss be GRANTED and the Petitioner's petition be DENIED and
DISMISSED with prejudice.

Petitioner is hereby notified that he may appeal

from the

judgment entered pursuant to this Final Order by filing a written

notice

of

appeal

Courthouse,

600

with

the

Clerk of

Granby Street,

this

Norfolk,

court.

Virginia

United States
23510,

within

thirty (30) days from the date of entry of such judgment.
Petitioner has failed to demonstrate a substantial showing of
the denial of a constitutional right, therefore, the Court declines

to issue any certificate of appealability pursuant to Rule 22(b) of
the

Federal

Cockrell,

Rules

123 S.Ct.

of

Appellate

1029,

1039

Procedure.

(2003).

See

Miller-El

v.

The Clerk is directed to mail a copy of this Final Order to
petitioner and provide an electronic copy of the Final Order to
counsel of record for respondent.

/s/
REBECCA BEACH

SMITH

CHIEF UNITED STATES

Norfolk, Virginia

201^

DISTRICT JUDGE