Coles v. Clarke
FINAL ORDER. It is ORDERED that the Court hereby ADOPTS and APPROVES the findings and recommendations set forth in the 16 Report and Recommendation filed June 223, 2022. It is ORDERED that the Respondent's 12 Motion to Dismiss is GRANTED, an d that the Petition is DENIED and DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Petitioner is ADVISED that he may seek a certificate from the United States Court of Appeals for the Fourth Circuit by filing a written notice of ap peal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510 within thirty (30) days. granting 12 Motion to Dismiss; adopting Report and Recommendations re 16 Report and Recommendations.. Signed by District Judge Arenda L. Wright Allen on 9/15/2022. (jmey, )
Case 2:21-cv-00329-AWA-LRL Document 18 Filed 09/15/22 Page 1 of 2 PageID# 237
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
BRANDON XAVIER COLES, #1469259,
Civil Action No. 2:21cv329
HAROLD W. CLARKE, Director,
Virginia Department of Corrections,
Before the Court are a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C.
§ 2254, ECF No. 1, and the Respondent’s Motion to Dismiss. ECF No. 12. In his Petition, the pro
se Petitioner alleges violation of federal rights pertaining to his convictions in the Circuit Court
for the City of Hampton for murder and use of a firearm in the commission of a felony. As a result
of the convictions, Petitioner was sentenced to serve 30 years in prison.
The Petition was referred to a United States Magistrate Judge for report and recommendation pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Local Civil Rule 72 of the
Rules of the United States District Court for the Eastern District of Virginia. The Magistrate
Judge’s Report and Recommendation filed June 23, 2022, recommends dismissal of the Petition
with prejudice. ECF No. 16. On July 14, 2022, Petitioner timely filed objections to the Report and
Recommendation. Respondent has not responded to Petitioner’s objections and the time to do so
The Court, having reviewed the record and examined the objections filed by Petitioner to
the Report and Recommendation, and having made de novo findings with respect to the portions
objected to, finds that the Petition should be denied as untimely for the reasons stated in the Report
Case 2:21-cv-00329-AWA-LRL Document 18 Filed 09/15/22 Page 2 of 2 PageID# 238
and Recommendation. Accordingly, the Court does hereby ADOPT and APPROVE the findings
and recommendations set forth in the Report and Recommendation filed June 23, 2022. It is ORDERED that the Respondent’s Motion to Dismiss, ECF No. 12, be GRANTED, and that the Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED
that judgment be entered in favor of the Respondent.
Finding that the procedural basis for dismissal of Petitioner’s § 2254 petition is not debatable, 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 shall forward a copy of this Order to Petitioner and to counsel of record for the
IT IS SO ORDERED.
Arenda L. Wright Allen
United States District Judge
September 15, 2022
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