Gallop v. Clarke

Filing 31

FINAL ORDER. It is ORDERED that the court does hereby ADOPT and APPROVE the findings and recommendations set forth in the 21 Report and Recommendation. It is therefore ORDERED that the Respondents 12 Motion to Dismiss be GRANTED, and that the 1 Petition be DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in of the Respondent. 22 Motion to Appoint Counsel is DENIED. Signed by District Judge Mark S. Davis on 12/1/2017. Copies mailed 12/1/2017. (jmey, )

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F LED UNITED FOR THE STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINI DEC -1 2017 Norfolk Division WESLEY THOMAS GALLOP, JR., #1071140 CLERK. US D^STRtCT COURT NOR'^OLK. VA Petitioner, ACTION NO. V. HAROLD W. CLARKE, 2:16cv596 Director, Virginia Department of Corrections, Respondent, FINAL Before the Court filed pursuant is a alleges his violations conviction distribute 2011, in as of for a the Petition for a to 28 U.S.C. to Dismiss the Petition. his or of for the years and two the pro se Petitioner rights heroin subsequent Court Writ of Habeas Corpus and the Respondent's Motion constitutional possession Circuit (4) § 2254 In his Petition, second resulted in four ORDER (2) with offense City of in relation to on intent to December 19, Chesapeake, which months active sentence in the Virginia state penitentiary. The Petition Judge for of U.S.C. the 28 Rules District report of of § was referred a United and recommendation pursuant 635(b)(1)(B) the to United Virginia. and (C) States to and Local States District The Magistrate Court Magistrate the provisions Civil for Judge's Rule the 72 of Eastern Report and Recommendation filed June 23, Petition with prejudice. timely filed objections addition, States Petitioner Court action by of On filed July a for Court was Petitioner's appeal. recommends dismissal of the 12, to the Report Appeals this 2017, Notice the the Petitioner and Recommendation. of Fourth stayed 2017, Appeal Circuit. pending On November 11, to 2017, Any the the the In United further outcome of Fourth Circuit dismissed Petitioner's appeal. Now this Court, having reviewed the record and examined the objections filed by Petitioner to the Report and Recommendation, and having made ^ objected to, does novo findings with respect to the portions hereby ADOPT and APPROVE the findings and recommendations set forth in the Report and Recommendation filed June 23, 2107.^ It is, therefore, ORDERED that the Respondent's ^ The that Court notes one of Petitioner's objections is based on the Magistrate Judge's reference, at page 4 of the Report and Recommendation, to an "affidavit" from Petitioner's trial counsel in defense of her performance, which was submitted in Petitioner's state court habeas proceeding before the Chesapeake Circuit Court. EOF No. 23 at p. 2. The document referenced was a letter not submitted under oath, and thus not an affidavit, but had been referred to as such by the state court in its Final Order denying the habeas petition. EOF No. 13, attach. 7 at 5. This Court does not consider the Magistrate Judge's reference to this document to be a finding that the letter was, in fact, an affidavit, but rather considers it to be part of the description of the proceedings in the state court which reviewed Petitioner's habeas claim. In any event, the Magistrate Judge correctly concluded that the question of whether the Chesapeake Circuit Court committed any error in Petitioner's state court habeas proceeding is unreviewable in a federal habeas petition. See Lawrence v. Branker^ 517 F.3d 700, 717 {4th Cir. 2008) ("even when there is some error in state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the assignment of error relating to those post-conviction proceedings represents an attack on a Motion to Petition, is Dismiss, ECF No. further 1, No. 12, be GRANTED, and that the be DENIED and DISMISSED WITH PREJUDICE. ORDERED Respondent. 22, ECF that judgment be entered in favor The Petitioner's Motion to Appoint Counsel, It of the ECF No. is DENIED as moot. The pursuant Petitioner to this appeal with the may Final Order Clerk of 600 Granby Street, appeal this Norfolk, from by the filing court. judgment a written entered notice of United States Courthouse, Virginia 23510, within thirty (30) days from the date of entry of such judgment. The Petitioner has failed showing of the denial of a the Court pursuant declines to Procedure. Rule See to demonstrate a constitutional right, issue 22(b) to any the of Miller-El v. certificate Federal Cockrell, and therefore, of Rules 537 substantial appealability of U.S. Appellate 322, 335-36 (2003). The Clerk shall mail a copy of this Final Order to Petitioner and to counsel of record for the Respondent. fsfM/d It is so ORDERED. ' MarkS.Davis United States District Judge MARK UNITED December I i , occurring in. a STATES S. DAVIS DISTRICT JUDGE 2017 state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief.")).

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