Gorbey v. Commonwealth of VA

Filing 20

FINAL ORDER. It is ORDERED that 13 Motion to Dismiss is GRANTED, and the 1 Petition for a Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that Gorbeys request to have his petition construed as a writ of error c oram nobis is DENIED. A certificate of appealability is DENIED. Gorbey is ADVISED that he may seek a certificate of appealability from the Fourth Circuit, within thirty days, by filing a written notice of appeal with the Clerk of the United States District Court. Signed by District Judge Raymond A. Jackson on 6/5/2019. Copies mailed 6/6/2019. (jmey, )

FILED
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

MICHAEL S. GORBEY,#33405-013,

CLERK. US D'STRiCT COURT
NORFOLK VA

Petitioner,
ACTION NO. 2:18cvllO

V.

HAROLD W. CLARKE,

Director of the Virginia
Department of Corrections,
Respondent.
FINAL ORDER

Petitioner Michael S. Gorbey ("Gorbey"), a Virginia inmate, submitted a pro se petition

for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. ECF No. 1. Gorbey challenges his
misdemeanor possession of marijuana conviction, based on his guilty plea in the General District
Court for Hanover County on January 10, 2007. Id. at 1. Gorbey was sentenced the same day to
time served. Id.

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 Local Rules of the United States District
Court for the Eastern District of Virginia for report and recommendation. The report and
recommendation, filed April 23, 2019, recommends that respondent's motion to dismiss,ECF No.
13, be granted, and the petition for a writ of habeas corpus, ECF No. 1, be denied and dismissed
with prejudice. ECF No. 19. The report and recommendation further recommended that Gorbey's

request to have his petition construed as a writ of error coram nobis, ECF No. 17 at 3, be denied.
Each party was advised of his 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 filing objections has expired.

The Court, having reviewed the record, does hereby adopt and approve the findings and
recommendations set forth in the report and recommendation. The Court, therefore, ORDERS

that respondent's motion to dismiss, ECF No. 13, 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 Gorbey's request to have his petition construed as a writ of error coram nobis,
ECF No. 17 at 3, is DENIED.

Finding that the basis for dismissal of Gorbey's Section 2254 petition is not debatable, and
alternatively finding that Gorbey 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
11(a)ofthe Rules Gov. § 2254 Cases in U.S. Dist. Cts.; Miller-El v. Cockrell, 537 U.S. 322,33538 (2003); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000).

Gorbey 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 11(a) of the Rules Gov. § 2254 Cases in U.S. Dist. Cts. If Gorbey intends to
seek a certificate of appealability from the Fourth Circuit, he must do so within thirty days from
the date of this Order. Gorbey 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 Gorbey and^^ulfsel of record for
respondent.
Raymond A/
United States District Judge

Raymond A. Jackson

Norfo^ Virginia

June^^ 2019

United States District Judge