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, )

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.")).