Opinion
ACTION NO. 2:15cv92
01-22-2016
NATHAN CHAMBLISS, #1426637, Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.
FINAL ORDER
Petitioner, a Virginia inmate, submitted a pro se petition pursuant to 28 U.S.C. § 2254. ECF No. 1. The petition alleges violations of federal rights pertaining to Petitioner's convictions in the Circuit Court of Fairfax County for abduction, attempted robbery, and using a firearm in the commission of a felony. As a result of the convictions, Petitioner was sentenced on May 21, 2010, to serve sixteen years in the Virginia penal system with six years suspended. Respondent filed a motion seeking to dismiss the petition. ECF No. 6.
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 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The report and recommendation, filed December 8, 2015, recommends that Respondent's motion to dismiss be granted and that the petition for a writ of habeas corpus be denied and dismissed with prejudice. ECF No. 13.
Each party was advised of the right to file written objections to the findings and recommendations made by the Magistrate Judge. On December 30, 2015, the Court received Petitioner's objections to the report and recommendation. ECF No. 14.
Petitioner's objections state that the report and recommendation erred in failing to address his claim that he was denied counsel "at a critical phase of the trial (the sentencing phase)." ECF No. 14 at 2-3. This objection is overruled. The report and recommendation could not reach the merits of Petitioner's claim that he was denied counsel at sentencing because the claims he presented in his habeas petition were procedurally defaulted. ECF No. 13 at 4-11. Petitioner's "claim A" was procedurally defaulted on direct appeal by the Court of Appeals of Virginia under Rule 5A:18 of the Rules of the Supreme Court of Virginia. Id. at 6. Petitioner's "claim B" was procedurally defaulted because it was never presented to the Supreme Court of Virginia, and any attempt to do so now would be barred as a successive petition under Virginia Code § 8.01-654(B)(2). Id. at 10.
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 the report and recommendation.
The Court, therefore, ORDERS that Respondent's motion to dismiss (ECF No. 6) is GRANTED, and the petition for a writ of habeas corpus (ECF No. 1) is DENIED and DIMISSED WITH PREJUDICE. It is further ORDERED that Judgment be entered in favor of respondent. Petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right," and, 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, 537 U.S. 322, 335-36 (2003).
Petitioner is hereby notified that he may appeal from the Judgment entered pursuant to this final Order by filing a 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.
The Clerk is requested to mail a copy of this final Order to Petitioner and counsel of record for respondent.
IT IS SO ORDERED.
/s/_________
Arenda L. Wright Allen
United States District Judge Norfolk, Virginia
1·22, 2016