Smith v. Smith et al, No. 2:2019cv00135 - Document 20 (E.D. Va. 2020)

Court Description: FINAL ORDER. It is ORDERED that the Court does hereby ADOPT and APPROVE the findings and recommendations set forth in the 18 Report and Recommendation filed December 20, 2019. It is, therefore, ORDERED that the Respondent's 14 Motion to Dism iss be GRANTED, and that the Petition be DENIED and DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Petitioner is ADVISED that he may seek a certificate from the United States Court of Appeals for the Fourth Circuit by filing a written notice of appeal with the Clerk of the United States District Court within thirty (30) days.Signed by District Judge Raymond A. Jackson on 1/10/2020. Copies mailed 1/13/2020. (jmey, )

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Smith v. Smith et al Doc. 20 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division ROBERT F. SMITH,#CV-5130 Petitioner, CIVIL ACTION NO. 2:19cvl35 V. HAROLD W.CLARKE,Director, Virginia Department of Corrections, Respondent. FINAL ORDER Before the Court is a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 and the Respondent's Motion to Dismiss the Petition. In his Petition, the pro se Petitioner alleges that the Virginia Parole Board's continued denial of his parole violates his due process rights. The Petition was referred to a United States Magistrate Judge for report and recommendation pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C)and Local Civil Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia. The Magistrate Judge's Report and Recommendation filed on December 20, 2019, recommends dismissal of the Petition with prejudice. ECF No. 18. On January 2, 2020, the Petitioner timely filed objections to the Report and Recommendation. The Respondent has not responded to the Petitioner's objections and the time to do so has expired. The Court, having reviewed the record and examined the objections filed by Petitioner to the Report and Recommendation, and having made de novo findings with respect to the portions objected to, does hereby ADOPT and APPROVE the findings and recommendations set forth in Dockets.Justia.com the Report and Recommendation filed December 20, 2019. It is, therefore, ORDERED that the Respondent's Motion to Dismiss, ECF No. 14, be GRANTED,and that the Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent. Finding that the procedural basis for dismissal of Petitioner's § 2254 petition is not debatable, and alternatively finding that Petitioner has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability is DENIED. 28 U.S.C. § 2253(c); see Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a); Miller-El v. Cockrell, 537 U.S. 322, 33538 (2003); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000). Petitioner is ADVISED that because a certificate of appealability is denied by this Court, he may seek a certificate from the United States Court of Appeals for the Fourth Circuit. Fed. Rule App. Proc. 22(b); Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a). If Petitioner intends to seek a certificate of appealability from the Fourth Circuit, he must do so within thirty (30) days from the date of this Order. Petitioner may seek such a certificate by filing a written notice of appeal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510. The Clerk shall forward a copy of this Final Order to Petitioner and to counsel of record for the Respondent. It is so ORDERED. - Raymond A. Jackson United States District Judge Raymond A. Jackson United States District Judge January 2020

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