-FBS Pratt v. Clarke, etc., No. 2:2010cv00599 - Document 17 (E.D. Va. 2011)
Court Description: FINAL ORDER overruling petitioner's objections; adopting and approving the findings and recommendations set forth in 15 Report and Recommendations; denying and dismissing the petition with prejudice; granting respondent's 7 Motion to Di smiss; directing that judgment be entered in favor of the respondent; noting appeal procedures; declining to issue a certificate of appealability. Signed by District Judge Rebecca Beach Smith and filed on 7/27/11. ECF to counsel, copy mailed to petitioner.(mwin, )
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-FBS Pratt v. Clarke, etc. Doc. 17 FILED UNITED FOR THE STATES DISTRICT COURT JUL 2 7 2011 EASTERN DISTRICT OF VIRGINI Norfolk Division c ep7k u.s. district court VALETON PRATT, OSO! K. VA SR., Petitioner, Case No.: V. HAROLD W. CLARKE, Director of 2:10cv599 the Virginia Department of Corrections, Respondent. FINAL This corpus of matter under federal the was of Court twenty-five to (25) of of 72 (b) the Rules District of of of fifty petition the as writ alleges a third for of an of habeas violations conviction Virginia, years suspended, a petitioner's County, (50) for of offense. five {5) Petitioner imprisonment, active in with sentence of years. the of to cocaine referred the provisions of The Mecklenburg years The matter was to 2254. pertaining serve (25) twenty-five Rule § distribution sentenced pursuant initiated by petition U.S.C. rights Circuit counts 28 was ORDER Federal the Virginia the magistrate judge of a United States 28 Rules United for to U.S.C. of States report was Civil District and filed § on Magistrate Judge 636(b)(l)(B) Procedure, Court for recommendation. June 1, 2011, and and the The (C) , Rule 72 Eastern report recommending Dockets.Justia.com that the petition be denied and petitioner's with prejudice. (ECF No. was his advised findings June of and 16, 15.) right to recommendations 2011, the Court objections. written (ECF first magistrate claim be file made No. by of the report, written the 16.) objections filed The the to the judge. magistrate and each party On petitioner's respondent filed no objections. judge denied copy received response to the petitioner's The By claims be dismissed recommended and dismissed that as the petitioner's meritless and that the second claim should be dismissed as procedurally defaulted.1 The petitioner judge's petitioner petitioner claim waives recommendation However, that explicitly for the as to objects failed first to time any objection claim to the exhaust in one. claim that (ECF magistrate a petition Virginia Supreme Court after to two the No. magistrate 16, judge's he 1.) finding raised the rehearing before for when at the court had denied and dismissed petitioner's state habeas petition. Petitioner the Fourth 1 The due to argues Circuit's first the opinion in claim alleges counsel's certificate that failure to magistrate Hendrick ineffective object to v. judge's True, reliance 443 assistance of the F.3d on 342 counsel admission of a of analysis at trial while the second claim alleges ineffective assistance of counsel due to counsel's failure to subpoena the laboratory analyst who prepared the certificate of analysis. (4th the Cir. 2006) is Supreme Court misplaced. raise a new filed in that claim in decision by the Virginia argues his for adjudication of The in a its raise a decision the Fourth amend the claim on held for a by In for him the merits. for a Petitioner order summarily denying be the that and construed was the rehearing as an entirely relevant here. petition to the Virginia Supreme at the and claim failed Court the could petitioner's filed pursuant to attempted to based on Court Supreme presented 364-65 Petitioner second Court petitioner reasoning petitioner rehearing considering fairly of petitioner States the line the Supreme for United rejected Id. case, The petition rationale utilized by add that Virginia Court Virginia Supreme Court. The the in down petition petition proper rehearing petitioner's jurisdiction. Supreme Circuit his with original handed Virginia for should rejected in Hendrick. petition new rehearing Circuit decision court's it was petition Supreme Court because this new claim on the merits. Fourth habeas that his that jurisdiction over his court that the Virginia Supreme Court's petition reasons of Virginia had original state habeas petition to Petitioner while petition. have the The moved argument claim a to that to the & n.l. Fourth Circuit in Hendrick could have moved to to his do petition so. to is amend his before Petitioner the cannot utilize his petition for [petitioner] . . . rehearing claim." Id. at 3 65. Petitioner also the petitioner on justice. claim if the to petitioner's the did not provide claim defaulted A default of in any basis despite order actual petitioner innocent.'" (quoting Murray v. of actual the to innocence evidence, " than not that of actual of and light the accounts, or 477 U.S. must no the reasonable new be scientific critical to v. show evidence, of procedural constitutional at 298, "with have 324, the 505 327 it is more For credible U.S. 333, Schlup, (1995) reliable convicted 327. is The claim new trustworthy evidence," one who (1986)). that would Whitley, physical 496 to miscarriage 'a U.S. Court is conviction of 513 finding claim excuse that 478, Id^ this the a may demonstrated by Sawyer fact supported juror evidence." innocence may be *exculpatory Delo, "the petitioner must another person, 324. Carrier, v. judge's for avoid wshow[s] Schlup innocence objection second claim is magistrate violation has probably resulted in the actually "would allow OVERRULED. objects petitioner's procedurally Therefore, finding that petitioner's procedurally defaulted is rule that to make an end run around state court review of his the magistrate judge's that in a manner likely him in example, confession 340 (1992), eyewitness 513 U.S. at The entirety innocent is relief in his of petitioner does lab the available petitioner's petitioner objections is not of the entitled Court is an with AND Court, APPROVE report of 2011, the {ECF petition the the judge's Motion AND Dismiss, to ORDERED that The pursuant appeal and (ECF with it WITH No. 7), this the may final Clerk of appeal order this by be which to Therefore, finding the that procedural hereby forth ORDERED for that the GRANTED. from filing ADOPT in the June on 1, that the recommendations ORDERED Court, However, reliable filed PREJUDICE the the evidence set therefore, is it. does Judge judgment be entered in favor of petitioner to is, Adopting report, to the justice is OVERRULED. record, Magistrate for and judge's recommendations it claims innocence. the DISMISSED report. magistrate and States 15), DENIED in reviewed findings United No. be stated having any exception actually "questions" sufficiently default rule to prevent a miscarriage of The his prepared magistrate to of is analysis who actual to he Petitioner and petitioner's that substance analyst provide previously the certificate the not to claim petition. the of demonstrate related habeas qualifications not Petitioner's directly reliability was of the reasons in the respondent's It is further the respondent. the a United judgment written States entered notice of Courthouse, 600 days has Granby from Street, the failed to date Norfolk, of Virginia entry demonstrate wa of a constitutional right." the Court, Appellate pursuant Procedure, appealability. to of 23510, such judgment. substantial 28 U.S.C. Rule 22 (b) declines See Miller-El v. within § of to thirty The petitioner showing of the 2253(c)(2). the issue Cockrell, (30) Therefore, Federal a denial Rules certificate 537 U.S. 322, of of 335-36 (2003). The Clerk shall mail a copy of this Final Order to the petitioner and to counsel of record for the respondent. ______ /s/ Rebecca Beach Smith United States District Judge UNITED Norfolk, Virginia July $\ , 2011 STATES DISTRICT JUDGE
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