Miller v. Clark
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, )
UNITED STATES DISTRICT COURT
MAY 2 6 2017
FOR THE EASTERN DISTRICT OF VIRGINIA
CLhlRK, US DIS i RICT COU
FRANKIE M. MILLER,
Virginia Department of Corrections,
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.
following his guilty plea.
The matter was referred to a United States Magistrate Judge
and recommendation pursuant
636(b) (1) (B)
to the provisions of
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.
Each party was advised of
recommendations made by the Magistrate Judge.
On May 8, 2017, the
The respondent filed no response to the objections
and the time for responding has now expired.
objections filed by petitioner to the Report and Recommendation,
and having made ^
novo findings with respect to the portions
recommendations set forth in the Report and Recommendation filed
be GRANTED and
ORDERED that Respondent's
DENIED and DISMISSED with prejudice.
Petitioner is hereby notified that he may appeal
judgment entered pursuant to this Final Order by filing a written
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
referenced report may have been a
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
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)).
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
123 S.Ct. 1029, 1039
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.
UNITED STATES DISTRICT JUDGE
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