Freeman v. Clarke, No. 2:2017cv00076 - Document 41 (E.D. Va. 2018)

Court Description: ORDER. The court does hereby OVERRULE the Respondent's Objection, and ADOPT AND APPROVE IN FULL the findings and recommendations set forth in the 21 Report and Recommendations. The Respondent's 11 Motion to Dismiss is GRANTED IN PART with respect to the claims of prosecutorial vindictiveness, and DENIED IN PART with respect to the claims of ineffective assistance of counsel. The Petitioner's claim of prosecutorial vindictiveness is hereby DISMISSED, and the Petitioner may p roceed on the claims of ineffective assistance of counsel. The court GRANTS 32 Motion for an Evidentiary Hearing on the ineffective assistance of counsel claim. The court GRANTS the Petitioner's 33 Motion to Appoint Counsel. The court WITH HOLDS RULING on the Petitioner's Motion for Relief. The Clerk is DIRECTED to send a copy of this Order to the Petitioner; John Rockecharlie, the Petitioner's former counsel, to the Petitioner's newly appointed counsel; and to counsel for the Respondent. Signed by Chief District Judge Rebecca Beach Smith on 2/14/2018. Copies mailed to all (with the exception of newly appointed counsel as yet to be appointed) on 2/15/2018. (jmey, )

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Freeman v. Clarke Doc. 41 UNITED STATES DISTRICT EASTERN DISTRICT COURT FILED OF VIRGINIA Norfolk Division F£B 1 4 2018 Clerk, us TYVONE FREEMAN, couri K VA Petitioner, CIVIL ACTION NO. V. HAROLD CLARKE, 2:17cv76 Director, Virginia Department of Corrections, Respondent. ORDER This Dismiss, matter comes before 28 U.S.C. Petition"). § 2254 ECF No, 1. to dismiss for a Writ § 636(b)(1)(B) Procedure 72(b), hearings, if proposed to and of (C), conduct necessary, findings the of The matter was Magistrate Judge Douglas E. Miller, U.S.C. court on filed by the Respondent on April 27, which requested the court under the fact, to if 2017, Motion to EOF No. 11, Petitioner's Habeas Corpus Petition ("§ 2254 referred to United States pursuant to provisions of 28 and Federal hearings, and the Rule including submit to applicable, Civil evidentiary- the and of undersigned recommendations for the disposition of the Motion. The United Recommendation States ("R&R") was Magistrate filed on Judge's Report December 22, 2017, and ECF Dockets.Justia.com No. 21. The Magistrate Judge recommended Motion to Dismiss be granted as prosecutorial Petitioner's at 34-35. right claims of file the Respondent challenging recommendation received Objection. the Respondent's Petitioner's claims of denied assistance objections of counsel claims proceed. the as of to counsel. the R&R the parties were advised of their January 5, 2018, court be ineffective written the the and vindictiveness, By copy of the R&R, to to that thereto. Id. at 35-36. On filed an Objection to the R&R, that the ECF No. 22. Petitioner's ineffective assistance On January 25, Response ECF No. 31. On February 5, 2018, to the 2018, the Respondent's the Respondent filed a Reply to the Petitioner's Response. ECF Nos. 39-40. The court, having examined the R&R, and having made ^ does hereby OVERRULE APPROVE the R&R. GRANTED IN FULL the the IN PART vindictiveness, ineffective with Respondent's the counsel. and Objection, recommendations Respondent's respect of to counsel. vindictiveness Petitioner may proceed on the of Objection to the Motion claims of and ADOPT AND set to forth in Dismiss is prosecutorial and DENIED IN PART with respect to the claims of assistance prosecutorial Respondent's novo findings with respect thereto, findings Accordingly, the is The hereby claims of Petitioner's DISMISSED, claim and of the ineffective assistance Additionally, the Evidentiary Hearing, ECF No. 33; and a aside the or 394 ECF Petitioner's U.S. Motion 291-92 for of grant evidentiary hearings showing"). court Because GRANTS pursuant an the to Rule Motion to Appoint requesting 38. claim. (stating See that to petitioners for court Hearing Harris an Counsel, court federal v. set GRANTS on the Nelson, courts must "upon an appropriate hearing Motion the The Evidentiary evidentiary of Motion ECF No. an Petitioner's 8(c) a Relief, counsel (1969) filed a conviction, assistance 286, No. 32; Motion for overturn his ineffective Petitioner is to warranted, Appoint the Counsel, the Rules Governing Section 2254 an evidentiary hearing is warranted, the ("If judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed counsel under 18 U.S.C. to represent § 3006A."). The the Petitioner for court the will appoint limited purpose of this hearing, and will do so forthwith. After hearing counsel will Petitioner's hearing . on, be is scheduled. Motion and counsel claims. appointed for The Relief, disposition of, by the court an WITHOLDS until the court, after evidentiary RULING the ineffective on the evidentiary assistance No appeal may yet be taken in this case, of until disposition of all claims in this habeas corpus action. The Clerk is DIRECTED to send a Petitioner; to John Rockecharlie, copy of this Order to the the Petitioner's former counsel; to the Petitioner's newly appointed counsel; counsel for the Respondent. IT IS SO ORDERED. /s/ Rebecca Beach Smith Chief Judge REBECCA BEACH SMITH CHIEF JUDGE February IS 2018 and to

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