Fosnaught v. Clarke, No. 2:2016cv00115 - Document 19 (E.D. Va. 2017)

Court Description: FINAL ORDER. The Court does hereby ADOPT and APPROVE the findings and recommendations set forth in the 16 Report and Recommendation filed December 9, 2016. It is, therefore, ORDERED that the Respondent's 12 Motion to Dismiss, is GRANTED, and that the 1 Petition for a Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent. Petitioner's 17 Motion for Discovery is DENIED. Signed by Chief District Judge Rebecca Beach Smith on 1/19/2017. Copies mailed 1/19/2017. (jmey, )
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Fosnaught v. Clarke Doc. 19 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division KANE ANTHONY F0SNAU6HT, Petitioner, V. ACTION NO. 2:16cvll5 HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent. FINAL ORDER Before the Court is a Petition for filed pursuant to 28 U.S.C. to Dismiss the Petition. alleges violations his convictions Attempted Robbery, for the of Habeas Corpus § 2254 and the Respondent's Motion constitutional Conspiracy, the pro se Petitioner rights Malicious in relation to Wounding, and three counts of the Use of a the Commission of a Felony. Court Writ In his Petition, of his for a City of thirty-two On August 19, Virginia (32) Beach, years with 2013, the Robbery, Firearm in in the Circuit Petitioner sentenced to seventeen years suspended, resulting in an active total sentence of fifteen was (17) (15) years incarceration in the Virginia state penitentiary. The Judge for Petition report of 28 U.S.C. the Rules of §§ was referred to a United and recommendation pursuant 636(b)(1)(B) the United and States (C) States to Magistrate the provisions and Local Civil Rule 72 of District Court for the Eastern District of Virginia. The Recommendation filed December the with Magistrate Petition Petitioner Petitioner's The filed The On having and the December to has the to of 2016, the Report and responded do record and dismissal 29, the not time reviewed Report recommends objections Respondent objections Court, 2016, prejudice. timely Recommendation. 9, Judge's so and to has the expired. examined the objections filed by Petitioner to the Report and Recommendation, and having made ^ objected to, novo findings with respect to the portions does hereby ADOPT and APPROVE the findings and recommendations set forth in the Report and Recommendation filed December 9, 2016. It is, Respondent's Motion to Dismiss, the Petition, It is ECF No. 1, therefore, ECF No. 12, ORDERED that is granted, the and that is DENIED and DISMISSED WITH PREJUDICE. further ORDERED that judgment be entered in favor of the Respondent. On December for Discovery, showing to Gramley, the Rules 29, 2016, ECF No. establish 520 U.S. 899 Governing "good cause" or a § the 17, the but he need (1997} 2254 Petitioner for failed that filed to make a discovery. (reasoning, Cases, also See a sufficient Bracy based on Rule a Motion 6(a) petitioner must v. of show sufficient showing of the likelihood of merit to his claim for a motion for discovery to be granted in a 2 § 2254 case). Therefore, Petitioner's Motion, ECF No. 17, is DENIED. The pursuant Petitioner to this appeal with may Final appeal Order the Clerk of 600 Granby Street, this Norfolk, from by the filing court, Virginia judgment a written entered notice of United States Courthouse, 23510, within thirty (30) days from the date of entry of such judgment. The Petitioner has failed showing of the denial of a the Court pursuant declines to Rule Procedure. See to demonstrate constitutional right, issue 22(b) to any the of Miller-El v. certificate Federal Cockrell, a and therefore, of Rules 537 substantial U.S. appealability of Appellate 322, 335-36 (2003). The Clerk shall mail a copy of this Final Order to Petitioner and to counsel of record for the Respondent. I t is so ORDERED. ISi Rebecca Beach Smith Chief Judge REBECCA BEACH SMITH CHIEF UNITED STATES DISTRICT JUDGE Norfolk, Virginia January , 2017