Peterson v. Clarke

• Court: District Court, E.D. Virginia
• Decided: December 15, 2023
• Docket: 2:23-cv-00346
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

MICHAEL ANDREW PETERSON, #1828516,

Plaintiff,

v. ACTION NO. 2:23cv346

HAROLD W. CLARKE,

Defendant.

FINAL ORDER Petitioner Michael Andrew Peterson (“Peterson”), a Virginia inmate, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Pe- terson challenges his 2018 convictions in the Circuit Court for the City of Fredericks- burg. Id. Respondent filed a motion to dismiss the petition, and Peterson responded to the motion. ECF Nos. 12, 18. This matter was referred to the United States Magistrate Judge 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. On October 27, 2023, the Magistrate Judge prepared a report and recommendation, recommend- ing that respondent’s motion to dismiss, ECF No. 12, be granted, and the petition for a writ of habeas corpus, ECF No. 1, be denied and dismissed with prejudice as barred by the statute of limitations. ECF No. 24. Each party was advised of the right to file written objections to the findings and recommendations made by the Magistrate Judge. Id. at 5. On December 5, 2023, the Court received Peterson’s objections to the findings and recommendations made by the Magistrate Judge. ECF No. 28. In his objections, Peterson requested an evidentiary hearing. ECF No. 28, at 44. Because Peterson “failed to forecast any evidence beyond that already contained

in the record, or otherwise to explain how his claim would be advanced by an eviden- tiary hearing,” his request for an evidentiary hearing is DENIED. Robinson v. Polk, 438 F.3d 350, 368 (4th Cir. 2006) (quoting Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir. 1998), overruled on other grounds by Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000)). The Court, having reviewed the record and examined the objections filed by Peterson to the report and recommendation, 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 respondent’s motion to dismiss, ECF No. 12, is GRANTED, and the petition for a writ of habeas corpus, ECF No. 1, is DENIED and DISMISSED WITH PREJUDICE as barred by the statute of limitations. Finding that the basis for dismissal of Peterson’s section 2254 petition is not debatable, and alternatively finding that Peterson has not made a “substantial show-

ing of the denial of a constitutional right,” a certificate of appealability is DENIED. 28 U.S.C. § 2253(c); see Rule 11(a) of the Rules Gov. § 2254 Cases in U.S. Dist. Cts.; Miller-El v. Cockrell, 537 U.S. 322, 335–38 (2003); Slack v. McDaniel, 529 U.S. 473, 483–85 (2000). Peterson is 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 2 Fourth Circuit. Fed. R. App. P. 22(b); Rule 11(a) of the Rules Gov. § 2254 Cases in U.S. Dist. Cts. If Peterson intends to seek a certificate of appealability from the Fourth Circuit, he must do so within thirty (30) days from the date of this Order. Peterson 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. The Clerk shall mail a copy of this Final Order to all counsel of record.

Arenda L. Wright Allen United States District Judge Norfolk, Virginia December 15, 2023