Summary
dismissing actual innocence argument when petitioner's habeas claims attacked the sentence imposed, not the conviction
Summary of this case from Smith v. WardenOpinion
ACTION NO. 2:13cv324
12-09-2013
EDWARD A. BAKER, #1205144, Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.
FINAL ORDER
This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition alleges violation of federal rights pertaining to petitioner's convictions on September 17, 2009, in the Circuit Court of Richmond, Virginia, for possession with intent to distribute heroin, subsequent offense. As a result of the conviction, he was sentenced to 30 years in prison.
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 October 18, 2013, recommends dismissal of the petition. The Report and Recommendation advised the parties of their right to object and the time limit for doing so. The Court has received no objections from either party, and the time for filing objections has now expired.
Accordingly, the Court does hereby accept the findings and recommendations set forth in the Report and Recommendation filed October 18, 2013, and it is therefore ORDERED that respondent's Motion to Dismiss be GRANTED, and that the petition be DENIED and DISMISSED with prejudice.
Petitioner may appeal from the judgment entered pursuant to this Final Order by filing a written notice of appeal with the Clerk of this court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within thirty (30) days from the date of entry of such judgment.
Petitioner has failed to demonstrate a substantial showing of the denial of a constitutional right, therefore, the Court declines to issue any certificate of appealability pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure. See Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).
The Clerk is DIRECTED to mail a copy of this Final Order to petitioner and to counsel of record for respondent.
____________________________
MARK S. DAVIS
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
December 9, 2013