United States District Court, E.D. Virginia, Norfolk Division
S. DAVIS, CHIEF UNITED STATES DISTRICT JUDGE
Edward James Egan ("Egan"), a Virginia inmate,
submitted a pro se petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, and an addendum to
the petition. ECF Nos. 1, 43. Egan alleges violations of
federal rights pertaining to his convictions in the Circuit
Court for the County of Roanoke, for assault and battery and
sexual abuse. ECF No. 13 at 1 (referencing Commonwealth
v. Egan, Nos. CR03000739-00 and CR03000740-00 (Va. Cir.
Feb. 9, 2004)). As a result of these convictions, Egan was
sentenced to 18 months in the Virginia penal system on
February 9, 2004. Id. The matter was referred to a
United States Magistrate Judge pursuant to the provisions of
28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the
Local Rules of the United States District Court for the
Eastern District of Virginia for report and recommendation.
The report and recommendation, filed March 12, 2019,
recommends that the petition be dismissed without prejudice
to Egan refiling his federal petition after obtaining an
order authorizing the filing of a successive petition from
the Court of Appeals for the Fourth Circuit. ECF No. 46. Each
party was advised of his right to file written objections to
the findings and recommendations made by the Magistrate
Judge. Id. Neither party has filed objections, and
the time for filing objections has expired.
March 21, 2019, Egan filed a motion pursuant to Federal Rule
of Civil Procedure 60(b). ECF No. 47. In the motion, Egan is
seeking relief from the *erroneous dismissal" of his
habeas petition. Id. at 1. Egan argues that his
previous habeas petitions were dismissed due to "fraud
upon the court" by the Assistant Attorney General for
Virginia. Id. at 1, 7-9. Egan further argues that
the magistrate judge made "many serious errors and
statements" in the report and recommendation.
Id. at 2. Egan asserts that the following statement
from the report and recommendation is incorrect:
"According to the 'Virginia Court Case
Information' online service, Egan's sexual abuse
charge was initiated in Juvenile and Domestic Relations
Court, and appealed to the Circuit Court for the County of
Roanoke. Commonwealth v. Egan, No. CR03000740-00
(Va. Cir. Feb. 9, 2004)." ECF Nos. 46, 47. Egan argues
that he was charged with "sexual battery," not
"sexual abuse." ECF No. 47 at 2. Further, Egan
indicates that he did not appeal his conviction, but that
Juvenile and Domestic Relations Court cases
"JA01290-01-00 and JA1290-02-00" "became
CR03000739 and 740-00 (2-9-04) in Circuit Court."
Id. at 7. In addition, Egan argues that the report
and recommendation only referenced his February 2004
proceedings whereas he "raised issues in all
cases." Id. at 3. Egan requests that the Court
"recall and void" the report and recommendation and
order pursuant to Rule 60(b), and hold an evidentiary hearing
on his claim of fraud upon the court. Id. at 5.
Egan filed his motion pursuant to Rule 60(b), no final order
or dismissal of his petition had been entered. Instead, the
report and recommendation by the magistrate judge recommended
that a final order be entered dismissing Egan's petition
without prejudice. Accordingly, Egan's Rule 60(b) motion
has been construed as objections to the report and
Court, having reviewed the record and examined the objections
to the report and recommendation raised in Egan's Rule
60(b) motion, 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 the petition for a writ of
habeas corpus, ECF No. 1, is DISMISSED WITHOUT
PREJUDICE to Egan refiling his federal petition
after obtaining an order authorizing the filing of a
successive petition from the Court of Appeals for the Fourth
that the basis for dismissal of Egan's § 2254
petition is not debatable, and alternatively finding that
Egan 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 Gov. § 2254 Cases in U.S.
Dist. Cts. 11(a); Miller-El v. Cockrell, 537 U.S.
322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473,
483-85 (2000) .
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 Gov. § 2254
Cases in U.S. Dist. Cts. 11(a). If Egan intends to seek a
certificate of appealability from the Fourth Circuit, he must
do so within thirty days from the date of
this Order. Egan 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.
Clerk shall mail a copy of this final order to Egan and
counsel of record for respondent.
 On June 11, 2004, Egan was convicted
in the Circuit Court for the County of Roanoke for two counts
of forcible sodomy, one count of rape, and one count of
inanimate object penetration, and was sentenced on November
18, 2004, to serve over 100 years in the Virginia penal
system. Commonwealth v. Egan, Nos.
CR03000735-00-738-00 (Va. Cir. June 11, 2004). ...