Opinion
ACTION NO. 2:20cv270
03-18-2021
MICHAEL S. OWL FEATHER-GORBEY, 33405-013, Petitioner, v. HAROLD W. CLARKE, Director of the Virginia Department of Corrections, Respondent.
FINAL ORDER
Petitioner Michael S. Owl Feather-Gorbey ("Gorbey"), a Virginia inmate, submitted a pro se amended petition, pursuant to 28 U.S.C. § 2254. ECF No. 3. Gorbey alleges his federal rights were violated when the Circuit Court for Fauquier County entered an order on October 18, 2017, preserving an earlier capias and reentering the capias in the National Crime Information Center. Id. at 5, 7-8, 10, 15.
This matter was referred to the United States Magistrate Judge 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. On January 27, 2021, the Magistrate Judge prepared a report and recommendation, recommending that respondent's motion to dismiss the petition be granted, Gorbey's motion for summary judgment be denied, Gorbey's request for an evidentiary hearing be denied, and the amended petition for a writ of habeas corpus be denied and dismissed with prejudice. ECF No. 23. Each party was advised of the right to file written objections to the findings and recommendations made by the Magistrate Judge. On March 15, 2021, the Court received Gorbey's objections to the findings and recommendations made by the Magistrate Judge. ECF No. 26.
The report and recommendation mailed January 27, 2021, was returned to the Clerk's Office marked "undeliverable" on February 11, 2021. ECF No. 24. The Court directed the Clerk's Office to send the report and recommendation to Gorbey at FCI Beckley on February 24, 2021, and extended the deadline for objections to March 16, 2021. ECF No. 25. --------
The Court, having reviewed the record and examined the objections filed by Gorbey 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 the petition (ECF No. 11) be GRANTED, Gorbey's motion for summary judgment (ECF No. 16) be DENIED, Gorbey's request for an evidentiary hearing (ECF No. 3 at 27-30) be DENIED, and the amended petition for a writ of habeas corpus (ECF No. 3) be DENIED and DISMISSED WITH PREJUDICE.
Finding that the basis for dismissal of Gorbey's section 2254 petition is not debatable, and alternatively finding that Gorbey has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability is DENIED. 28 U.S.C. § 2253(c); see Rule 11(a) of the Rules Gov. § 2254 Cases in U.S. Dist. Cts.; Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000).
Gorbey is ADVISED that because a certificate of appealability is denied by this Court, he may seek a certificate from the United States Court of Appeals for the Fourth Circuit. Fed. R. App. P. 22(b); Rule 11(a) of the Rules Gov. § 2254 Cases in U.S. Dist. Cts. If Gorbey intends to seek a certificate of appealability from the Fourth Circuit, he must do so within thirty (30) days from the date of this Order. Gorbey may seek such a certificate by filing a written notice of appeal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510.
The Clerk shall mail a copy of this Final Order to Gorbey and counsel of record for respondent.
/s/_________
Raymond A. Jackson
United States District Judge Norfolk, Virginia
March 18, 2021