Harris v. Commonwealth of Virginia

Filing 14

FINAL ORDER. It is ORDERED that the Court ADOPTS and APPROVES the 13 Report and Recommendation in its entirety as the Court's own opinion. Accordingly, the Respondent's 8 Motion to Dismiss is GRANTED, and the 1 Petition for Writ of Ha beas Corpus is DENIED and DISMISSED WITH PREJUDICE. It is ORDERED that judgment be entered in favor of the Respondent. The Clerk shall forward a copy of this Order to the Petitioner and counsel of record for the Respondent. Signed by District Judge Raymond A. Jackson on 1/16/2019. Copies mailed 1/17/2019. (jmey, )

FILED
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

JAN 1 7 2019

Norfolk Division

ci ERK. US District court
NCn^nTK, VA

JOE LEWIS HARRIS, III, #1444683,
Petitioner,

Civil Action No.: 2:18cvl05

V.

HAROLD W.CLARKE,Director,
Virginia Department of Corrections,
Defendant.
FINAL ORDER

Before the Court is a petition for a writ of habeas corpus(ECF No. 1)filed pursuant to 28

U.S.C. § 2254, and the Respondent's motion to dismiss(ECF No. 8). On February 12, 2012, the
Petitioner was convicted of first degree murder in violation of Virginia Code § 18.2-32 and
malicious wounding in violation of Virginia Code § 18.2-51 after pleading guilty on October 14,
2011, in the Circuit Court for the County of Powhatan, Virginia. The Petitioner was sentenced to

thirty-two years for the first degree murder conviction and ten years for the malicious wounding
conviction to be served concurrently. In his petition, the pro se Petitioner challenges the
constitutionality of this conviction and sentence.

The matter was referred for disposition to a United States Magistrate Judge pursuant to
28 U.S.C. §§ 636(b)(l)(B)-(C), Federal Rule of Civil Procedure 72(b), Local Civil Rule 72, and
the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate
Judges. In a Report and Recommendation entered on November 5, 2018 (ECF No. 13), the

Magistrate Judge recommended the motion to dismiss be granted, and the petition be denied and
dismissed with prejudice. The parties were advised of their right to file written objections to the

Report and Recommendation. Neither the Petitioner nor the Respondent filed objections with
the Court.

Having reviewed the record and having heard no objection, the Court agrees with the

Report and Recommendation on the grounds stated by the Magistrate Judge and ADOPTS and
APPROVES the Report and Recommendation (ECF No. 13) in its entirety as the Court's own
opinion. Accordingly, the Respondent's motion to dismiss(ECF No. 8) is GRANTED,and the
Petition (ECF No. 1) is DENIED and DISMISSED WITH PREJUDICE. It is ORDERED

thatjudgment be entered in favor of the Respondent.

The Petitioner is hereby notified that he may appeal from the judgment entered pursuant
to this Final Order by filing a written notice of appeal with the Clerk of the Court at the Walter

E. Hoffman United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within thirty
(30) days from the date judgment is entered. Because the Petitioner has failed to demonstrate a

substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(e) and
Federal Rule of Appellate Procedure 22(b)(1), the Court declines to issue a certificate of

appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and counsel of
record for the Respondent.
It is so ORDERED.

Raymond A.Jackson

United States District Judge
Raymond A. Jackson
United States District Judge

Norfoll^^ Virginia

Date:{/

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