Gaither v. Zook

Filing 22

MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 02/10/2017. Copy mailed to Petitioner. (walk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

JLJL_E
FEB I 0 2017
CLERK. U.S. DISTRICT COURT

TORIAN GAITHER,

RICHMOND. VA

Petitioner,
Civil Action No. 3:16CV64

V.

DAVID ZOOK,

Respondent.
MEMORANDUM OPINION

Torian Gaither, a Virginia state prisoner proceedingpro se, brings this petition pursuant
to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his convictions in the Circuit
Court of the City of Hampton, Virginia ("Circuit Court"). On December 1,2016, the Magistrate
Judge issued a Report and Recommendation that recommended dismissing Gaither's § 2254

Petition as procedurally defaulted and, in the alternative, as lacking in merit. (ECF No. 18.)
Gaither filed objections. (ECF No. 19.) On January 18,2017, the Magistrate Judge issued an
Amended Report and Recommendation that corrected an inconsistency in the Report and
Recommendation. {See ECF No. 20, at 1.) The Court explained that "in the original Report and
Recommendation, the Court declined to decide whether Gaither had established cause to excuse

his default." {Id. at 1 n.l.) The Court further noted: "Although not raised by Gaither, the Court
now issues an Amended Report and Recommendation that conclusively addresses any cause[] to
excuse Petitioner's procedural defauh and recommends that Petitioner's claim be dismissed as
procedurally defaulted, and in the alternative, as lacking in merit." {Id. at 1.) The Court advised

Gaither that he could file objections within fourteen (14) days after the entry of the Amended
Report and Recommendation. Gaither has not responded. For the reasons that follow, Gaither's