Barbour v. Johnson, No. 2:2009cv00302 - Document 24 (E.D. Va. 2010)

Court Description: ORDER ADOPTING REPORT AND RECOMMENDATIONS for 7 Motion to Dismiss filed by Gene M. Johnson; 22 Report and Recommendations. Petitioner's objection is OVERRULED. The Court ADOPTS AND APPROVES the findings and recommendations in the report of the United States Magistrate Judge filed on 6/21/10 and it is ORDERED that the petition be DENIED AND DISMISSED as the petition is procedurally defaulted. It is further ORDERED that judgment be entered in favor of Respondent. Signed by District Judge Mark S. Davis and filed on 7/28/10; Copy ECF to counsel and mailed to pro se on 7/29/10. (kgri)

Download PDF

Barbour v. Johnson Doc. 24 FiLED UNITED STATES DISTRICT COURT JUL 2 8 2010 Norfolk Division CLERK, U.S^ DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINI|A NOHPOLK VA KENNETH EDWARD BARBOUR, #323278, Petitioner, v. GENE M. JOHNSON, ACTION NO. 2:09cv302 Director, Virginia Department of Corrections, Respondent. FINAL ORDER This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition alleges violation of federal rights pertaining to Petitioner's conviction in the Circuit Court of Arlington County, Virginia. The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636<b)(l)<B) and (C) , Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 72 of the Rules of the United States District Court for District of Virginia for report and recommendation. the magistrate judge was filed on June 21, dismissal of the petition. Eastern The report of 2010, By copy of the report, the recommending each party was advised of his right to file written objections to the findings and recommendations made by the magistrate judge. Court received Petitioner's Objection. On July 1, 2010, the (Doc. No. 23.) The Court received no response from Respondent. The majority of Petitioner's Objection was unintelligible. The Court magistrate discerns judge's only report one objection and to the recommendation. merits of the Specifically, Dockets.Justia.com Petitioner states that he has demonstrated cause that excuses his claims from being procedurally defaulted. Petitioner does not allege facts that constitute cause, but rather he summarily states that cause exists. in his report and recommendation, the magistrate judge addressed the limited exceptions to procedural default and found that "Barbour failed to establish the requisite cause for his failure to comply with the applicable state procedural rules." The Court agrees, and Barbour has not alleged facts in his Objection that change the Court's analysis. Accordingly, Petitioner's objection is OVERRULED. The Court, having reviewed the record and examined the objections filed by Petitioner to the magistrate judge's report, and having made de novo findings with respect to the portions objected to, does recommendations hereby set forth ADOPT in AND APPROVE the Magistrate Judge filed on June 21, report 2010, of the the findings United and it is, and States therefore, ORDERED that the petition be DENIED AND DISMISSED as the petition is procedurally defaulted. It is further ORDERED that judgment be entered in favor of 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 (30) days from the date of entry of such judgment. Petitioner has failed to demonstrate substantial showing of the denial of a constitutional right." U.S.C. § 2253(c)(2). certificate of appealability. 335-36 28 Therefore, the Court, pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, 322, "a declines to issue a spp Miller-El v. Cockrell, 537 U.S. (2003) . The Clerk shall mail a copy of this Final Order to Petitioner and to counsel of record for Respondent. MarkS. Davis United States District Judge UNITED STATES Norfolk, Virginia July 3ft , 2010 DISTRICT JUDGE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.