Egan v. Clark et al
Filing
48
FINAL ORDER. The Court ORDERS that the 1 Petition for a Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE to Egan refiling his federal petition after obtaining an order authorizing the filing of a successive petition from the Court of Appeals fo r the Fourth Circuit. A certificate of appealability is DENIED. Egan is ADVISED that because a certificate of appealability is denied by this Court, he may seek a certificate from the United States Court of Appeals within thirty (30) days from the date of the Final Order. Signed by Chief District Judge Mark S. Davis on 4/12/2019. Copies mailed 4/15/2019. (jmey, )
FILED
UNITED STATES DISTRICT COURT
APR 1 5 2019
FOR THE EASTERN DISTRICT OF VIRGINI
Norfolk Division
CLERK. US DtSTRlCT COURT
NORFOLK. VA
EDWARD JAMES EGAN, #1031220,
Petitioner,
ACTION NO.
V.
2:17cv439
HAROLD W. CLARKE,
Director of the Virginia
Department of Corrections,
Respondent.
FINAL ORDER
Petitioner Edward James Egan {"Egan"), a Virginia inmate,
submitted a pro se petition for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2254, and an addendum to the petition.
43.
ECF Nos. 1,
Egan alleges violations of federal rights pertaining to his
convictions in the Circuit Court for the County of Roanoke, for
assault and battery and sexual abuse.
Commonwealth
ECF No. 13 at 1 (referencing
v. Egan, Nos. CR03000739-00 and CR03000740-00 (Va.
Cir. Feb. 9, 2004)).
As a result of these convictions, Egan was
sentenced to 18 months in the Virginia penal system on February 9,
2004.1
Id.
The matter was referred to a United States Magistrate
1 On June 11, 2004, Egan was convicted in the Circuit Court for
the County of Roanoke for two counts of forcible sodomy, one count
of rape, and one count of inanimate object penetration, and was
sentenced on November 18, 2004, to serve over 100 years in the
Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and
(C) and Rule 72 of the Local Rules of the United States District
Court
for
the
Eastern
recommendation.
District
of
Virginia
for
report
and
The report and recommendation, filed March 12,
2019, recommends that the petition be dismissed without prejudice
to Egan refiling his federal petition after obtaining an order
authorizing the filing of a successive petition from the Court of
Appeals for the Fourth Circuit.
ECF No. 46.
Each party was
advised of his right to file written objections to the findings
and recommendations made by the Magistrate Judge.
Id.
Neither
party has filed objections, and the time for filing objections has
expired.
On March 21, 2019, Egan filed a motion pursuant to Federal
Rule of Civil Procedure 60(b).
ECF No. 47.
In the motion, Egan
is seeking relief from the ''erroneous dismissal" of his habeas
petition.
Id.
at
1.
Egan
argues
that
his
previous
habeas
petitions were dismissed due to "fraud upon the court" by the
Assistant Attorney General for Virginia.
Id. at 1, 7-9.
Egan
further argues that the magistrate judge made "many serious errors
and statements" in the report and recommendation.
asserts
that
the
following
statement
from
Id. at 2.
the
report
Egan
and
Virginia penal system.
Cowmonwealth v. Egan, Nos. CR0300073500-738-00 (Va. Cir. June 11, 2004). Egan is currently in custody
as a result of these June 2004 convictions.
recommendation is incorrect:
"According to the 'Virginia Court
Case Information' online service, Egan's sexual abuse charge was
initiated in Juvenile and Domestic Relations Court, and appealed
to the Circuit Court for the County of Roanoke.
Commonwealth v.
Egan, No. CR03000740-00 (Va. Cir. Feb. 9, 2004)."
47.
ECF Nos. 46,
Egan argues that he was charged with "sexual battery," not
"sexual abuse."
ECF No. 47 at 2.
Further, Egan indicates that he
did not appeal his conviction, but that Juvenile and Domestic
Relations
Court
cases
"JA01290-01-00
and
JA1290-02-00"
CR03000739 and 740-00 (2-9-04) in Circuit Court."
addition,
Egan argues
"became
Id. at 7.
In
that the report and recommendation only
referenced his February 2004 proceedings whereas he "raised issues
in all cases."
Id. at 3.
Egan requests that the Court "recall
and void" the report and recommendation and order pursuant to Rule
60(b), and hold an evidentiary hearing on his claim of fraud upon
the court.
Id. at 5.
When Egan filed his motion pursuant to Rule 60(b), no final
order or dismissal of his petition had been entered.
Instead, the
report and recommendation by the magistrate judge recommended that
a
final
order
prejudice.
be
entered
Accordingly,
dismissing
Egan's
Rule
Egan's
60(b)
petition
motion
without
has
been
construed as objections to the report and recommendation.
The
Court,
having
reviewed
the
record
and
examined
the
objections to the report and recommendation raised in Egan's Rule
60(b) motion, and having made de novo findings with respect to the
portions objected to, does hereby adopt and approve the findings
and recommendations set forth in the report and recommendation.
The Court, therefore, ORDERS that the petition for a writ of habeas
corpus, EOF No. 1, is DISMISSED WITHOUT PREJUDICE to Egan refiling
his federal petition after obtaining an order authorizing the
filing of a successive petition from the Court of Appeals for the
Fourth Circuit.
Finding that the basis for dismissal of Egan's § 2254 petition
is not debatable, and alternatively finding that Egan has not made
a "substantial showing of the denial of a constitutional right,"
a certificate of appealability is DENIED.
28 U.S.C. § 2253(c);
see Rule Gov. § 2254 Cases in U.S. Dist. Cts. 11(a); Miller-El v.
Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S.
473, 483-85 (2000).
Egan is ADVISED that because a certificate of appealability
is denied by this Court, he may seek a certificate from the United
States Court of Appeals for the Fourth Circuit.
Fed. R. App. P.
22(b); Rule Gov. § 2254 Cases in U.S. Dist. Cts. 11(a).
If Egan
intends to seek a certificate of appealability from the Fourth
Circuit, he must do so within thirty days from the date of this
Order.
Egan may seek such a certificate by filing a written notice
of appeal with the Clerk of the United States District Court,
United
States
Courthouse,
600
Granby Street,
Norfolk,
Virginia
23510.
The Clerk shall mail a copy of this final order to Egan and
counsel of record for respondent.
Mark S. Davis
ChiefJudge
Mark S. Davis
Chief United States District Judge
Norfolk, Virginia
April/2^, 2019
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