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, )

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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

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