Opinion
2:05CV35.
October 3, 2005
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 May 20, 1997, in the Circuit Court for the City of Newport News, Virginia, for two counts of forcible sodomy, as a result of which he was sentenced to serve twenty-two years in the Virginia penal system.
The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 29 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The Magistrate Judge filed his report recommending dismissal of the petition on August 8, 2005. By copy of the report, each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. The Court received from petitioner on August 19, 2005, a document entitled "I. Statement of the Case A. Background," which is construed as objections to the report.
The Court, having reviewed the record and examined the objections filed by the petitioner 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 the Report of the United States Magistrate Judge filed August 8, 2005. It is, therefore, ORDERED that the petition be DENIED and DISMISSED pursuant to the statute of limitations and that judgment be entered in respondent's favor.
To the extent that petitioner has filed a response to the report and recommendation, the pleading is not helpful to his cause, since his federal habeas petition was filed outside of the statute of limitations. Should petitioner wish any additional testing, he must rely upon the resources of the Commonwealth of Virginia. However, this Court has no basis upon which to grant him the relief that he seeks.
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 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, pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, declines to issue a certificate of appealability. See Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).
The Clerk shall mail a copy of this Final Order to petitioner and to counsel of record for the respondent.