Nelson v. Johnson, No. 2:2008cv00349 - Document 21 (E.D. Va. 2009)
Court Description: FINAL ORDER adopting and approving findings and recommendations set forth in 18 Report and Recommendations; denying and dismissing the petition; directing that judgment be entered in favor of respondent; noting appeal procedures; declining to issue certificate of appealability. Signed by District Judge Jerome B. Friedman and filed on 4/27/09. Copies ECF to counsel; mailed to petitioner 4/28/09.(mwin, )
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Nelson v. Johnson Doc. 21 UNITED STATES FILED DISTRICT COURT FOR THE EASTERN DISTRICT OP VIRGINIA Norfolk Division RICKY DONNELL NELSON, APR 2 7 2009 CLERK, U.S. DISTRICT COURT #312831, NORFOLK. VA Petitioner, v. ACTION NO. GENE M. JOHNSON, Director of 2:08cv349 for a writ of habeas the Virginia Department of Corrections, Respondent. FINAL This matter was ORDER initiated by petition corpus under 28 U.S.C. § 2254. The petition alleges violation of federal rights pertaining to Petitioner's conviction on March 10, 2003, in the Circuit Court of the City of Fr eder i cksburg, Virginia, for distribution or possession with intent to sell cocaine, result of which he was sentenced to serve five (5) years in as a the Virginia penal system. The matter was pursuant to referred to a United States Magistrate Judge the provisions of 28 U.S.C. § 636{b)(l)(B) and (C) , Rule 72(b) of the Federal Rules of Civil Procedure and Rule 72 of the of Rules the United States District Court for District of Virginia for report and recommendation. the Eastern The report of the Magistrate Judge (Magistrate Judge's Report) was filed on March 31, 2009, denying Petitioner's motion for an evidentiary hearing Dockets.Justia.com and recommending report, each dismissal party objections to magistrate was judge. Petitioner's Report the of the advised findings On Objections to and Recommendations. of and April petition.1 his right to 2009, United the States The Court copy of the file written made recommendations 10, the By by Court received Magistrate received no the Judge's response from Respondent. The Court, having reviewed the record and examined the objections filed by Petitioner to the Magistrate Judge's report,2 and having objected made to, novo does recommendations Magistrate de Judge findings hereby set forth filed ADOPT in with AND the on March respect APPROVE report 31, 2009, of and to the the it the portions findings United is, and States therefore, ORDERED that the petition be DENIED AND DISMISSED and that judgment 1 The Magistrate Judge's Report recommended dismissal of the petition because Claims 1 and 4 were not cognizable, Claims 2 and 5 were procedurally defaulted, and Claim 3 was without merit. 2 Petitioner first objection, makes three clear objections. Regarding the that the Magistrate Judge misconstrued the grounds Petitioner stated in Claims 1 and 4, a close reading of the petition finds this objection to be without merit. Second, Petitioner objects to the Magistrate Judge recommending dismissal of Claim 3 because Petitioner believes the recommendation is based on an unreasonable determination of the facts in the state court proceeding at trial and on direct appeal. Petitioner's objection is without merit because it misunderstands the standard stated in 28 U.S.C. § 2254{d). Third, Petitioner argues that Claims 2 and 5 are not procedurally defaulted; these arguments are also without merit. Because Petitioner's Claims 2 and 5 are procedurally defaulted, the Report and Recommendation did not address the merits of Petitioner's claims, and the Court sees no reason to do so here. be entered in favor of Respondent. Petitioner may appeal this final order by Clerk of this Court, filing Virginia 23510, entry of such judgment. Therefore, of showing the Court, Appellate of within thirty {30) Petitioner has of the denial of declines See Miller-El v. to appeal with a days the from the date of constitutional "a right." of the Federal Rules issue Cockrell. to 600 Granby Street, failed to demonstrate pursuant to Rule 22(b) Procedure, appealability. a written notice United States Courthouse, Norfolk, substantial from the judgment entered pursuant 537 a certificate U.S. 322, of 335-36 (2003). The Clerk shall mail a copy of this Final Order to Petitioner and to counsel of record for Respondent. M Jerome B. Friedman United States District Judga UNITED STATES DISTRICT JUDGE Norfolk, Virginia April ^"* , 2009
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