Opinion
CIVIL ACTION NO. 2:16-cv-32
12-05-2016
WYVONNE RONTEA JONES Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.
FINAL ORDER
Before the Court is a petition for a writ of habeas corpus, ECF No. 1, filed pursuant to 28 U.S.C. § 2254, Petitioner's Motion for Leave to Proceed in forma pauperis, ECF No. 9, and the Respondent's Motion to Dismiss, ECF No. 12.
A jury in the Circuit Court for the City of Virginia Beach convicted Petitioner of possession of a firearm by a convicted felon, in violation of Virginia Code § 18.2-308.2; 18.2-10. ECF No. 14 at 1. By order dated September 27, 2012, the trial court entered final judgment and imposed the jury's verdict of five years of incarceration. Id., attach. 1. On June 6, 2012, Petitioner was found to have violated the terms of his previously suspended sentence for carjacking, and on September 12, 2012, the trial court ordered that the unserved portion, two years, of the sentence originally imposed on June 25, 2002, be executed. Id., attach. 2. In his Petition, the pro se Petitioner challenges the constitutionality of this conviction and sentence.
The matter was referred for disposition to a United States Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), Local Civil Rule 72, and the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate Judges. In a Report and Recommendation entered on October 31, 2016, ECF No. 19, the Magistrate Judge recommended the Respondent's Motion to Dismiss be granted, and the Petition be denied and dismissed with prejudice. The parties were advised of their right to file written objections to the Report and Recommendation. Neither the Petitioner nor the Respondent filed objections with the Court.
Having reviewed the record and having heard no objection, the Court agrees with the Report and Recommendation on the grounds stated by the Magistrate Judge and ADOPTS and APPROVES the Report and Recommendation, ECF No. 19, in its entirety as the Court's own opinion. Accordingly, the Respondent's Motion to Dismiss, ECF No. 12, is GRANTED, the Petition, ECF No. 1, is DENIED and DISMISSED WITH PREJUDICE, and Petitioner's Motion for Leave to Proceed in forma pauperis, ECF No. 9, is DENIED AS MOOT. It is ORDERED that judgment be entered in favor of the Respondent.
The Petitioner is hereby notified that he may appeal from the judgment entered pursuant to this Final Order by filing a written notice of appeal with the Clerk of the Court at the Walter E. Hoffman United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within thirty (30) days from the date judgment is entered. Because the Petitioner has failed to demonstrate a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b)(1), the Court declines to issue a certificate of appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and counsel of record for the Respondent.
It is so ORDERED.
/s/_________
Rebecca Beach Smith
Chief Judge Norfolk, Virginia Date: 12-5-16