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
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