Fitzgerald et al

Filing 17

FINAL ORDER. It is ORDERED that 10 Motion to Dismiss is GRANTED, and that the 1 Petition for Writ of Habeas Corpus be DENIED and DISMISSED without prejudice. Signed by District Judge Mark S. Davis on 1/12/2018. Copies mailed 1/12/2018. (jmey, )

LED
UNITED
FOR THE

STATES

DISTRICT

EASTERN DISTRICT

COURT

OF

VIRGINIA

JAN 1 2 2018

Norfolk Division

RAYMOND FITZGERALD,

#1186026

CLERK. US D'STRICT COURT
NOR-OLK. VA

Petitioner,
ACTION NO.

V.

HAROLD W.

CLARKE,

2:17cv337

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 on
June 9,

2011,

firearm

by

in the Richmond Circuit Court for possession of a

a

convicted

commission of a felony,

felon,

use

of

a

firearm

during

the

and malicious wounding. As a result of the

convictions Petitioner was sentenced to serve a total of 28 years
in prison with 16 years suspended,

leaving a total time to serve of

12 years.

The petition was referred to a United States Magistrate Judge
for

report

and

U.S.C.

§

of

United

the

636(b)(1)(B)

Virginia.
December

recommendation pursuant

States

and

(C)

to

the

provisions

of

28

and Local Civil Rule 72 of the Rules

District

Court

for

the

Eastern

District

of

The Magistrate Judge's Report and Recommendation filed
8,

2017,

recommends

dismissal

of

the

petition without

prejudice as a result of unexhausted claims asserting Fitzgerald's

actual innocence.

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
December 8,

2017,

and i t is therefore ORDERED

that Respondent's

Motion to Dismiss be GRANTED, and that the petition be DENIED and
DISMISSED without 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,

Norfolk, Virginia 23510, within thirty (30)

600 Granby Street,

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

123 S.Ct.

of

Appellate

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.

MARK

S.

UNITED

Norfolk, Virginia
/

2018

DAVIS

STATES

DISTRICT

JUDGE