Clark v. Clarke

Filing 19

FINAL ORDER. It is ORDERED that 10 Motion to Dismiss is GRANTED, and the 1 Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that Judgement be entered in favor of Respondent. Signed by District Judge Arenda L. Wright Allen on 5/21/2018. Copies mailed 5/21/2018. (jmey, )

FILED
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

MAY 2 1 2018
CUfW.-JS ^'STH.CT CCX.R1
X. V'A

ELEVATION A. CLARK, #1159414,
Petitioner,
ACTION NO. 2:17cv366

V.

HAROLD W. CLARKE,

Respondent.

FINAL ORDER

Petitioner Elevation A. Clark ("Mr. Clark"), a Virginia inmate, has submitted a pro se

petition pursuant to 28 U.S.C. § 2254. ECF No. 1. Mr. Clark alleges that his federal rights were
violated when he was convicted in the Circuit Court for the City of Hampton on October 10,
2012 of two counts of robbery, one count of possession of a firearm, one count of unauthorized

use of a vehicle, one count of breaking and entering, and one count of grand larceny. Id.;

Commonwealth v. Clarke, No. CR12-420, 57-58 (Va. Cir. 2012).'
The matter was referred to a United States Magistrate Judge pursuant to the provisions of
28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for

the Eastern District of Virginia for report and recommendation.

The Report and

Recommendation was filed on April 13, 2018, and recommends granting Respondent's motion to

dismiss (ECF No. 10), and that Mr. Clark's federal petition should be dismissed with prejudice.
S'eeECFNo. 18.

*Page citations to CR 12-420 refer to the paper record provided to this Court by the state courts,
which is numbered in the bottom right comer of each page.

Each party was advised of the right to file written objections to the findings and

recommendations made by the Magistrate Judge. The Court has received no objections to the

Report and Recommendation, and the time for fihng objections has expired. The Court hereby
ADOPTS AND APPROVES the findings and recommendation set forth in the Report and
Recommendation. It is, therefore, ORDERED that Respondent's Motion to Dismiss, ECF No.

10, is GRANTED, and the petition for a writ of habeas corpus, ECF No. 1, is DENIED and
DISMISSED WITH PREJUDICE. It is further ORDERED that Judgment be entered in favor
of Respondent.
Mr. Clark has failed to demonstrate "a substantial showing of the denial of a

constitutional right," and, therefore, the Court declines to issue any certificate of appealability
pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure. See Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003).
Mr. Clark is hereby notified that he may appeal from the Judgment entered pursuant to

this Final Order by filing a notice of appeal with the Clerk of this Court, United States
Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within thirty days from the date of
entry of such Judgment.

The Clerk shall mail a copy of this Final Order to Mr. Clark and counsel of record for
Respondent.

Arenda Wright Allen
United States District Judge

Norfolk, Virginia
May 21, 2018