Davis v. Commonwealth of Virginia

Filing 19

ORDER. It is ORDERED that 18 Report and Recommendations is ADOPTED. 17 Motion to Voluntarily Dismiss is GRANTED and the 1 Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITHOUT PREJUDICE. 2 Motion for Leave to Proceed in forma pauperis is DENIED WITHOUT PREJUDICE. The Clerk is DIRECTED to send a copy of this Order to Petitioner Laquan Lemelle Davis. Signed by District Judge Jamar K. Walker on 8/30/2024. Copies mailed 8/30/2024. (jmey)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
LAQUAN LEMELLE DAVIS,
Petitioner,
v.

Case No. 2:23-cv-562

COMMONWEALTH OF VIRGINIA,
Respondent.
ORDER
Petitioner Laquan Lemelle Davis seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2241, challenging his sentence resulting from 2023 convictions in the
Newport News Circuit Court. ECF No. 1. The petition argues that “the court[]”
erroneously sentenced or “overcharged” the petitioner. Id. at 2.
The Honorable Lawrence R. Leonard, United States Magistrate Judge,
directed the petitioner to file an amended petition because the petitioner appears to
“seek[] relief under 28 U.S.C. § 2254.” ECF No. 14 at 1. In lieu of an amended petition,
the petitioner filed a Motion to Voluntarily Dismiss. ECF No. 17. The motion states
that the petitioner “realized that [his] attorney has an appeal in” and asks the Court
to “withdraw [his] habeas corpus because of [the] appeal.” Id.
Upon receipt of the motion to voluntarily dismiss, Judge Leonard concluded
that the petition should be denied and dismissed without prejudice. ECF No. 18 at 3–
4. Judge Leonard advised the parties of their rights to object to his findings and
recommendations and explained that failure to timely file an objection would result
in a waiver of appeal from a judgment of this Court based on such findings and
recommendations. Id. at 4 (citing Thomas v. Arn, 474 U.S. 140 (1985); Carr v. Hutto,

737 F.2d 433 (4th Cir. 1984); United States v. Schronce, 727 F. 2d 91 (4th Cir. 1984)).
The petitioner’s Motion to Voluntarily Dismiss indicates that he consents to the
Report and Recommendation, see ECF No. 17, and the Commonwealth of Virginia is
yet to enter an appearance. Thus, no objections have been filed and the time do so
has expired.
In the absence of a specific written objection, this Court may adopt a
Magistrate Judge’s recommendations without conducting a de novo review, unless
the recommendations are clearly erroneous or contrary to law. Fed. R. Civ. P. 72(b)(2);
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982) (citations omitted); Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005). The Court has
reviewed Judge Leonard’s findings and recommendations and found no clear error.
Accordingly, the Report and Recommendation (ECF No. 18) is ADOPTED.
The petitioner’s Motion to Voluntarily Dismiss (ECF No. 17) is GRANTED
and the Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED and
DISMISSED WITHOUT PREJUDICE. In light of the Court’s ruling on the Petition
for Writ of Habeas Corpus, the petitioner’s Motion for Leave to Proceed In Forma
Pauperis (ECF No. 2) is also DENIED WITHOUT PREJUDICE. The Clerk is
DIRECTED to send a copy of this Order to Petitioner Laquan Lemelle Davis.
IT IS SO ORDERED.

/s/

Jamar K. Walker
United States District Judge
Norfolk, Virginia
August 30, 2024
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