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, )

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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

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