Clayburn v. Clarke, No. 3:2018cv00555 - Document 32 (E.D. Va. 2019)
Court Description: MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 06/28/2019. (Copy sent to Plaintiff) (smej, )
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Clayburn v. Clarke Doc. 32 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA JUN 2 8 2019 Richmond Division MARICHEL FIERCE CLAYBURN, L p LJ cLeRK,U.S. DISTRICI UUURI RICHMOND. VA Petitioner, V. Civil Action No. 3:18CV555 HAROLD W.CLARKE, Respondent. MEMORANDUM OPINION Marichel Pierce Claybum,a Virginia inmate proceeding pro se^ filed this petition under 28 U.S.C. § 2254 challenging his convictions in the Circuit Court ofthe City of Richmond for murder and use of a firearm in the commission ofthat offense. On May 30,2019,the Magistrate Judge issued a Report and Recommendation wherein he recommended denying the § 2254 Petition. (ECF No. 31.) The Court advised Claybum that he could file objections within fourteen(14)days after the entry ofthe Report and Recommendation. Claybum has not responded. "The magistrate [judge] makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court." Estrada v. Witkowski, 816 F. Supp. 408,410(D.S.C. 1993)(citing Mathews v. Weber,423 U.S. 261,270-71 (1976)). This Court "shall make a de novo determination ofthose portions ofthe report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "The filing of objections to a magistrate's report enables the district judge to focus attention on those issues—factual and legal—^that are at the heart ofthe parties' dispute." Thomas v. Arn,474 U.S. 140, 147(1985)(footnote omitted). In the absence of a specific written objection, this Court may adopt a magistrate judge's Dockets.Justia.com recommendation without conducting a de novo review. See Diamond v. Colonial Life & Accident Ins. Co.,416 F.3d 310, 316(4th Cir. 2005). There being no objections, and the Court having determined that the Report and Recommendation is correct on its merits, the Report and Recommendation(ECF No. 31) will be ACCEPTED and ADOPTED. The Motion to Dismiss(ECF No. 22) will be GRANTED and the § 2254 Petition(ECF No. 1) will be DENIED. Claybum's claims and the action will be DISMISSED. An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability will not issue unless a prisoner makes "a substantial showing ofthe denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed fiirther.'" Slack v. McDaniel,529 U.S. 473,484(2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Because Claybum fails to make this showing, a certificate of appealability will be DENIED. An appropriate Order will accompany this Memorandum Opinion. M. Hannah United Stated Dikrict Judge Date: JUN 2 8 2019 Richmond, Virginia
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