Opinion
Case No.: 2:11cv84
11-02-2011
QUINTIN IRVING BROWN, Petitioner, v. STANLEY K. YOUNG, Warden, et al., Respondents.
FINAL ORDER
This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition alleges violations of federal rights pertaining to the petitioner's conviction in the Circuit Court for the City of Portsmouth, Virginia, of two counts of forgery, two counts of uttering, and two counts of attempting to obtain money by false pretenses, as a result of which he was sentenced to serve a total of 60 years in prison, with 56 years suspended.
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) , Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The report of the magistrate judge was filed on August 22, 2011, recommending that the petition be denied and dismissed without prejudice for failure to exhaust state remedies. 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. On September 9, 2011, the Court received and filed the petitioner's written objections. ECF No. 29. The respondent filed no response to the petitioner's objections.
The objections were accompanied by the petitioner's certification stating that the objections were deposited in the prison mail system on September 2, 2011. Accordingly, the objections shall be deemed timely filed pursuant to Rule 3(d) of the Rules Governing Section 2254 Cases in the United States District Courts (following 28 U.S.C. § 2254).
The petitioner's written objections simply reiterate facts and arguments on the merits of his claims, none of which may be considered by this Court at this time due to the petitioner's failure to exhaust his state remedies. Indeed, the petitioner's objections do not address the exhaustion issue at all. Accordingly, the petitioner's objections are OVERRULED.
The Court, having reviewed the record, does hereby ADOPT AND APPROVE the findings and recommendations set forth in the report of the United States Magistrate Judge filed on August 22, 2011 (ECF No. 28), and it is, therefore, ORDERED that the petition be DENIED AND DISMISSED WITHOUT PREJUDICE for the reasons stated in the report. Adopting the recommendations in the magistrate judge's report, it is ORDERED that the respondent's motion to dismiss (ECF No. 19) be GRANTED. It is further ORDERED that judgment be entered in favor of the respondent.
The 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. The petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 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, 537 U.S. 322, 335-36 (2003).
The Clerk shall mail a copy of this Final Order to the petitioner and to counsel of record for the respondent.
Henry Coke Morgan, Jr.
Senior United States District Judge
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
November 1, 2011