Miller v. Clark

Filing 18

FINAL ORDER. It is ORDERED that Respondent's 9 Motion to Dismiss is GRANTED and that the Petitioner's 1 Petition for a Writ of Habeas Corpus is DENIED and DISMISSED with prejudice. Signed by District Judge Mark S. Davis on 5/26/2017. Copies mailed 5/26/2017. (jmey, )

FILED
UNITED STATES DISTRICT COURT

MAY 2 6 2017

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

CLhlRK, US DIS i RICT COU
NOnFOLK. VA

FRANKIE M. MILLER,

JR.

(#1070339),

Petitioner,
ACTION NO.

V.

HAROLD W.

CLARKE,

2;16cv645

Director,

Virginia Department of Corrections,
Respondent.

FINAL ORDER

This matter was initiated by petition for a writ of habeas

corpus under 28 U.S.C. § 2254.

The petition alleges violation of

federal rights pertaining to petitioner's convictions on June 19,

2003, in the Henrico County Circuit Court, for capital murder and
aggravated malicious wounding.
Petitioner

was

sentenced

to

As

a

serve

result
two

of

life

the
terms

convictions
in

prison

following his guilty plea.
The matter was referred to a United States Magistrate Judge
for report
U.S.C.

§

and recommendation pursuant

636(b) (1) (B)

and

(C)

and

Rule

to the provisions of
72

of

the

Rules

of

28
the

United States District Court for the Eastern District of Virginia.
The Report and Recommendation, filed April 28, 2017, concludes the
petition is time-barred and the claims procedurally defaulted, and

recommends i t be denied and dismissed.

his

right

to

file

written

Each party was advised of

objections

to

recommendations made by the Magistrate Judge.

court

received

Recommendation.

petitioner's

Objections

the

findings

and

On May 8, 2017, the

to

the

Report

and

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,

does

novo findings with respect to the portions
hereby

adopt

and

approve

the

findings

and

recommendations set forth in the Report and Recommendation filed

April 28,

2017.^

It is,

therefore,

Motion to

Dismiss

be GRANTED and

ORDERED that Respondent's

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

Courthouse,

appeal
600

with

the

Clerk

Granby Street,

of

this

Norfolk,

court,

Virginia

United

States

23510,

within

thirty (30) days from the date of entry of such judgment.

' Petitioner's objections identified a factual error in the Report that does not
affect its analysis.
The Magistrate Judge stated that Miller's trial covinsel
referred to a forensic mental health evaluation during sentencing. It appears

from

the transcript

that

the

referenced report may have been a

competency

evaluation which was different from the forensic mental health evaluation.

Miller does not dispute the
received by his attorney in
would not have rendered his
16 at 5-6, n. 6) (citing 28

But

Report's conclusion that the forensic evaluation was
2003, and that his 2009 receipt of the same document
2016 filing timely. Report & Recommendation (EOF No.
U.S.C. § 2244(d)(1)).
2

Petitioner has failed to demonstrate a siabstantial 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.

7MQ>-

/s/
MARK S.

DAVIS

UNITED STATES DISTRICT JUDGE

Norfolk, Virginia
May

.

2017