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