Smith v. Clarke

Filing 38

FINAL ORDER. It is ORDERED that the Court agrees with the R&R on the grounds stated by the Magistrate Judge and ADOPTS and APPROVES the R&R in its entirety as the Court's own opinion. The Respondent's motion to dismiss is GRANTED, and the Petitions are DISMISSED WITHOUT PREJUDICE. It is therefore ORDERED that judgment be entered in favor of the Respondent. A certificate of appealability is DENIED. Petitioner is ADVISED that he may seek a certificate from the United States Court of App eals for the Fourth Circuit by filing a written notice of appeal with the Clerk of the United States District Court, United StatesCourthouse, 600 Granby Street, Norfolk, Virginia 23510 within thirty (30) days. Signed by Chief District Judge Mark S. Davis on 5/21/2020. Copies mailed 5/22/2020. (jmey, )

Case 2:18-cv-00327-MSD-LRL Document 38 Filed 05/22/20 Page 1 of 4 PageID# 232

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
FRANKLIN C. SMITH,
Petitioner,
v.

Case No. 2:18cv327

HAROLD W. CLARKE, Director,
Virginia Department of Corrections,
Respondent.

FINAL ORDER
Before the Court are petitions for a writ of habeas corpus,
ECF Nos. 8, 25, and 26 (“Petitions”), 1 filed pursuant to 28 U.S.C.
§ 2254, and the Respondent’s motion to dismiss, ECF No. 14.

On

July 10, 2017, a jury convicted Petitioner of statutory burglary
with intent to commit a larceny in the Circuit Court of the City
of Virginia Beach.

ECF No. 16-1 at 1.

The trial court entered

its judgment on March 2, 2018, and sentenced Petitioner to thirty
months imprisonment.

Id. at 1-2.

The trial court also imposed an

additional two years of incarceration, with such term suspended
pending Petitioner’s successful completion of two years of postrelease supervision.

1

Id. at 1.

In his Petitions, the pro se

Petitioner filed three petitions for habeas relief in this Court. Because
the petitions were substantially similar, the Court consolidated the
petitions under the primary case number 2:18cv327. See ECF No. 24; Smith
v. Clarke, 2:18cv296, ECF No. 4 (consolidating Case No. 2:18cv398 with
2:18cv296).

Case 2:18-cv-00327-MSD-LRL Document 38 Filed 05/22/20 Page 2 of 4 PageID# 233

Petitioner challenges the constitutionality of his conviction and
sentence. 2
The

pending

Magistrate

Judge

Petitions
pursuant

were
to

28

referred
U.S.C.

to
§§

a

United

States

636(b)(1)(B)-(C),

Federal Rule of Civil Procedure 72(b), Eastern District of Virginia
Local Civil Rule 72, and the April 2, 2002, Standing Order on
Assignment of Certain Matters to United States Magistrate Judges.
On December 30, 2019, the Magistrate Judge entered a Report and
Recommendation (“R&R”), ECF No. 32, recommending that the motion
to

dismiss

be

granted

and

dismissed without prejudice.

that

the

Petitions

be

denied

and

The parties were advised of their

right to file written objections to the R&R. 3
Petitioner filed an Objection to the R&R on March 23, 2020,
and thereafter filed an Amended Objection to the R&R on March 26,

2

While there are many extraneous details contained in each petition and
other documents filed by Petitioner, the Petitions each claim that
Petitioner is being subjected to double jeopardy.

3

On December 30, 2019, the Court mailed the R&R to Petitioner at his address
on record. On January 13, 2020, Petitioner’s copy of the R&R was returned
to the Court by the post office with the envelope stamped “RETURN TO SENDER”
and “NOT HERE”. Thereafter, the Court confirmed through Virginia’s Inmate
Locater system that Petitioner had been released from the Virginia Beach
Correctional Center. Even though Petitioner has not provided the Court with
an updated mailing address, the Court later learned through the Inmate
Locater system that Petitioner was once again being held at the Virginia
Beach Correctional Center. Therefore, on March 2, 2020, this Court entered
an Order, ECF No. 34, directing that the R&R be forwarded to Petitioner at
the Virginia Beach Correctional Center, P.O. Box 6098, Virginia Beach,
Virginia 23456, and advising Petitioner that any objections to the R&R be
filed within fourteen days from the forwarding date (March 2, 2020). It is
unclear from the record exactly when Petitioner mailed his Objection to the
R&R, but the Court will treat such Objection, as well as Petitioner’s Amended
Objection, as timely for the purpose of its review and analysis.

2

Case 2:18-cv-00327-MSD-LRL Document 38 Filed 05/22/20 Page 3 of 4 PageID# 234

2020. Respondent filed no objections.

This Court conducts a de

novo review of all portions of the Magistrate Judge’s R&R to which
specific objections are made.

28 U.S.C. 636(b)(1)(C).

The Court

may “accept, reject, or modify” the Magistrate Judge’s R&R, “in
whole or in part,” or may “recommit the matter” to the Magistrate
Judge with instructions for further consideration.
Petitioner’s

Objection

and

Amended

Id.

Objection

put

forth

numerous arguments, many of which do not pertain specifically to
the analysis in the R&R; however, the Court has liberally construed
such arguments where possible for the purpose of its review. After
reviewing the record and Petitioner’s objections to the R&R, and
having made de novo findings with respect to the portions to which
Petitioner objected, the Court finds that none of the arguments
put forth by Petitioner undercut the clear and sound reasoning set
forth in the R&R, namely that Petitioner has not exhausted his
available state court remedies or demonstrated the absence or
ineffectiveness of such remedies, and therefore, the Court agrees
with the R&R on the grounds stated by the Magistrate Judge and
ADOPTS and APPROVES the R&R in its entirety as the Court’s own
opinion.

Accordingly, the Respondent’s motion to dismiss, ECF

No. 14, is GRANTED, and the Petitions, ECF Nos. 8, 25, and 26, are
DISMISSED WITHOUT PREJUDICE. It is therefore ORDERED that judgment
be entered in favor of the Respondent.

3

Case 2:18-cv-00327-MSD-LRL Document 38 Filed 05/22/20 Page 4 of 4 PageID# 235

Finding
Petitioner’s

that
§

the

2254

procedural

habeas

basis

petition

is

for
not

dismissal
debatable,

of
and

alternatively finding that Petitioner 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 Rules 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).

Petitioner 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. Rule App. Proc. 22(b); Rules Gov. § 2254 Cases in U.S. Dist.
Cts. 11(a).

If Petitioner intends to seek a certificate of

appealability from the Fourth Circuit, he must do so within thirty
(30) days from the date of this Order.

Petitioner 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 is DIRECTED to forward a copy of this Order to the
Petitioner and counsel of record for the Respondent.
IT IS SO ORDERED.
/s/
Mark S. Davis
CHIEF UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
May ___, 2020
21

4