McKendrick v. Clarke

Filing 16

FINAL ORDER. It is ORDERED that 8 Motion to Dismiss is GRANTED, and the the 1 Petition for Writ of Habeas Corpus be DENIED and DISMISSED with prejudice. Signed by Chief District Judge Rebecca Beach Smith on 3/28/2017. Copies mailed 3/28/2017. (jmey, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

MATTHEW McKENDRICK

(#1536116 4A-39B),

Petitioner,
V.

ACTION NO.

HAROLD W.

CLARKE,

2:16cv600

Director,

Virginia Department of Corrections,
Respondent.
FINAL ORDER

This matter was initiated by petition for a
corpus under 28 U.S.C. § 2254.

writ of habeas

The petition alleges violation of

petitioner's constitutional rights pertaining to his convictions in

2014

in Fairfax County Circuit Court for carnal knowledge of a

minor.

As a result of the convictions, petitioner was sentenced to

serve ten years in prison with eight years suspended,

leaving an

active total prison term of two years.1
The petition was referred to a United States Magistrate Judge

for report and recommendation pursuant
U.S.C.

§ 636(b)(1)(B)

and (C)

of

United

District

the

Virginia.

February

States

to the provisions of 28

and Local Civil Rule 72 of the Rules
Court

for

the

Eastern District

of

The Magistrate Judge's Report and Recommendation filed

24,

^ Resp't's Br.

2017,

recommends

dismissal

in Supp. Mot. Dismiss 1

(ECF No.

of

the

petition

10, at 1).

with

Petitioner is

currently serving a sixty year sentence with fifty-six years suspended following
his conviction and sentencing on related charges in Chesterfield County. This
Court dismissed Petitioner's federal habeas petition regarding his Chesterfield
convictions on November 29, 2016. McKendrick. v. Clarke, No. 2:16cv224, 2016 WL
6997043

(E.D. Va. Nov.

29,

2016).

prejudice.

The Report and Recommendation advised Petitioner of his

right to object and the time limit for doing so.

The Court has

received no objections, and the time for filing objections has now
expired.

Accordingly,

the Court does hereby accept the findings

and

recommendations set forth in the Report and Recommendation filed
February 24,

2017,

and i t is therefore ORDERED that respondent's

Motion to Dismiss be GRANTED,

and that the petition be DENIED and

DISMISSED with prejudice.

Petitioner may appeal from the judgment entered pursuant to
this Final Order by filing a

written notice of appeal with the

Clerk of this court. United States Courthouse,

600 Granby Street,

Norfolk, Virginia 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

of

Appellate

123 S.Ct. 1029,

1039

Procedure.

See

Miller-El

v.

(2003).

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.

REBECCA BEACH

SMITH

CHIEF UNITED STATES DISTRICT JUDGE
2017