United States District Court, E.D. Virginia, Norfolk Division
Raymond A. Jackson United States District Judge.
the Court is an Amended Petition for a Writ of Habeas Corpus,
ECF No. 3, filed pursuant to 28 U.S.C. § 2254 and the
Respondent's Motion to Dismiss the Petition, ECF No. 8.
On April 21, 2014, the Petitioner was convicted of Grand
Larceny, Attempted Arson of Occupied Building, Burglary with
Intent to Commit Larceny, and Violation of a Protective Order
following a jury trial in the Circuit Court for the City of
Newport News. The Petitioner was sentenced to nine years and
six months of incarceration. In his Petition, the pro
se Petitioner challenges the constitutionality of his
prosecution, conviction, and sentence.
Petition was 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 December 18, 2018, recommends dismissal
of the Petition with prejudice. ECF No. 23. On January 9,
2019, the Petitioner filed a Motion for Extension of Time to
respond to the Report and Recommendation. ECF No. 24. The
Court granted the extension and directed Petitioner to submit
his objections to the Report and Recommendation by January
25, 2019. ECF No. 25. On January 22, 2019, Petitioner timely
filed his objections but did not address any of the claims he
put forth in his Amended Petition nor did he address any of
the findings by the Magistrate Judge in the Report and
Recommendation. See generally ECF No. 26. Instead,
Petitioner restated his objections to the Magistrate
Judge's Order granting Respondent's Motion for
Extension of Time/Motion to File Out-of-Time the Motion to
Dismiss, ECF No. 17, and the undersigned's Order denying
the Motion for Default Judgment as moot, ECF No.
See ECF No. 26. On January 31, 2019, Petitioner
filed an untimely second objection to the Report and
Recommendation. ECF No. 29. This objection did not address
the proposed findings and recommendations made by the
Magistrate Judge, as required by Fed.R.Civ.P.
72(b)(2). See generally Id. The Respondent
has not responded to the Petitioner's objections and the
time to do so has expired.
reviewed the record and examined the objections to the
findings in the Report and Recommendation, 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. 23, in its entirety as the
Court's own opinion. Accordingly, the Respondent's
Motion to Dismiss, ECF No. 8, is GRANTED,
and the Amended Petition, ECF No. 3, is
DENIED and DISMISSED WITH PREJUDICE.
It is ORDERED that judgment be
entered in favor of the Respondent.
Petitioner 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 days from the date of entry of such judgment.
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,
Clerk shall forward a copy of this Final Order to Petitioner
and to counsel of record for the Respondent.
 Petitioner filed a Notice of Appeal
seeking to appeal the undersigned's order, ECF No. 19,
(an Order denying Petitioner's Motion for Default
Judgment as Moot) and the Magistrate Judge's Order, ECF
No. 17, (an Order granting Respondent's Motion for
Extension of Time and finding Respondent's pleadings are
considered timely filed). On January 25, 2019, the Court of
Appeals for the Fourth Circuit dismissed the appeal on lack
of jurisdiction because "[t]he order Davis seeks to
appeal is neither a final order nor an appealable
interlocutory or collateral order." ECF No. 27. The
Fourth Circuit issued its mandate on February 19, 2019.
See ECF No. 30.
 Although Petitioner filed his second
objection to the Report and Recommendation untimely, the
Court has considered the arguments put forth by
 Instead, the gravamen of
Petitioner's argument is that the state court recited a
factual finding, which the Magistrate Judge noted, about
which Petitioner claims there was conflicting testimony
between a police officer and the victim of Petitioner's
offense. ECF No. 29. Petitioner argues that this purported