United States District Court, E.D. Virginia, Norfolk Division
S. Davis United States District Judge.
the Court is a Petition and Amended Petition for a Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254, ECF
Nos. 1 and 7, and the Respondent's Motion to Dismiss the
Petition, ECF No. 14. In his Petition and Amended Petition,
pro se Petitioner alleges violations of his
constitutional rights in relation to his convictions for
second-degree murder and use of a firearm in the commission
of a felony in the Circuit Court for the City of Norfolk. As
a result of these convictions, Petitioner was sentenced to
thirty-eight (38) years in the Virginia state penitentiary.
Petition and Amended Petition were referred to a United
States Magistrate Judge for report and recommendation
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.
The Magistrate Judge's Report and Recommendation filed
January 31, 2018, recommends dismissal of the Petition and
Amended Petition with prejudice. ECF No. 32. On February 14,
2018, Petitioner timely filed objections to the Report and
Recommendation. The Respondent has not responded to
Petitioner's objections and the time to do so has
Court, having reviewed the record and examined the objections
to the Report and Recommendation filed by Petitioner, 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 filed January 31,
2018. It is, therefore, ORDERED that the
Respondent's Motion to Dismiss, ECF No. 14, be
GRANTED, and that the Petition and Amended
Petition, ECF Nos. 1 and 7, be DENIED and
DISMISSED WITH PREJUDICE. It is further
ORDERED that judgment be entered in favor of
February 14, 2018, Petitioner also filed a Motion to Appoint
Counsel, (for the third time), and a Motion to Amend
Pleadings. The Court finds, as it did when denying
Petitioner's previous two requests for appointment of
counsel, there is no constitutional right to counsel in
non-capital federal habeas corpus proceedings. See
McCleskey v. Za.nl, 499 U.S. 467, 495 (1991)
(citation omitted); Pennsylvania V. Finley, 481 U.S.
551, 555 (1987) (citations omitted). Although the Court may
exercise its discretion and appoint counsel to represent an
indigent party in civil litigation pursuant to 28 U.S.C.
§ 1915(e)(1), see Bowman v. White, 388 F.2d
756, 761 (4th Cir. 1968) (citations omitted), Petitioner,
here, has again failed to allege any "exceptional
circumstances" warranting the appointment of counsel in
this case, see Cook v. Bounds, 518 F.2d 779, 780
(4th Cir. 1975) (citation omitted); Griffin v.
Virginia, 606 F.Supp. 941, 943 (E.D. Va. 1985) (citation
omitted). Accordingly, Petitioner's Motion to Appoint
Counsel, ECF No. 34, is DENIED.
Petitioner's Motion to Amend Pleadings, ECF No. 35, is
also DENIED as MOOT. As
reported in the Report and Recommendation, Petitioner raises
Claim 2 for the first time in the instant Petition and is
therefore procedurally barred from raising the
same. Notwithstanding this determination, the
Court separately finds the claim to be meritless. See ECF No.
32 at 23-24; 28 U.S.C. § 2254(b)(2).
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.
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).
Clerk shall mail a copy of this Final Order to Petitioner and
to counsel of record for the Respondent.
 Petitioner contends in his objections
to the R&R that Claim 2 cannot be resolved by this Court
because it is not "exhausted." However, in habeas
proceedings, "state-court remedies are described as
having been 'exhausted' when they are no longer
available, regardless of the reason for their
unavailability." Woodford v. Ngo,548 U.S. 81,
92-93 (2006). Here, as any attempt by Petitioner to return to
state court to raise Claim 2 would be both untimely and
successive under state law, Petitioner's claim is both
"exhausted" and procedurally defaulted. See ECF No.
32 at 7. Because Petitioner fails to demonstrate a valid
basis to overcome his ...