Opinion
Civil Action No.: 2:13-cv-479
07-30-2015
FRANKLIN CHARLES SMITH, 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 filed pursuant to 28 U.S.C. § 2254 and the Respondent's Motion to Dismiss the Petition. In his Petition, the pro se Petitioner claimed that his constitutional rights were violated and that he was denied effective assistance of counsel.
The matter was referred for disposition to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia 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 filed on June 11, 2015, the Magistrate Judge recommended that the Court grant the Motion to Dismiss and dismiss the Petition, finding the Petitioner's claims to be barred by the fugitive disentitlement doctrine. ECF No. 39. The parties were advised of their right to file written objections to the Report and Recommendation. On July 29, 2015, the Petitioner filed his objection to the Report and Recommendation. ECF No. 40. The Respondent did not file an objection, and the time to do so has expired.
Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court has reviewed de novo the Magistrate Judge's Report and Recommendation and the Petitioner's objection. After review, the Court fully accepts the findings and recommendations of the Magistrate Judge, and accordingly, hereby ADOPTS and APPROVES the Report and Recommendation, ECF No. 39, and it is therefore ORDERED that the Respondent's Motion to Dismiss, ECF No. 28, is GRANTED, and that the Amended Petition, ECF No. 25, is DENIED and DISMISSED WITH PREJUDICE. It is further 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. Norfolk, Virginia Date: July 30, 2015
/s/_________
Raymond A. Jackson
United States District Judge