IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division DIJUAN CLARK, Petitioner, v. ACTION NO. 2:20-cv-83 HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent. FINAL ORDER Before the Court is a petition for a writ of habeas corpus filed pursuant to

, ECF No. 1, and the Respondent’s motion to dismiss, ECF No. 8. On July 27, 2017, Petitioner was convicted and sentenced in the Circuit Court of the City of Alexandria for second degree murder and use of a firearm in the commission of murder. Petitioner was sentenced to 43 years imprisonment with 31 years suspended. ECF No. 10 at 1. In his petition, the pro se Petitioner challenges the constitutionality of this conviction. The matter was referred for disposition to a United States Magistrate Judge pursuant to

(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), Local Civil Rule 72, and the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate Judges. In a Report and Recommendation entered on December 8, 2020, the Magistrate Judge recommended the motion to dismiss be granted, and the petition be denied and dismissed without prejudice. ECF No. 12. The parties were advised of their right to file written objections to the Report and Recommendation. Neither the Petitioner nor the Respondent filed objections with the Court and the time to do so has expired.

Having reviewed the record and having heard no objection, 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. 18, as the Court’s own opinion. Accordingly, the Respondent’s motion to dismiss, ECF No. 8, is GRANTED, and the Petition, ECF No. 1, is DENIED and DISMISSED WITHOUT PREJUDICE. It is ORDERED that judgment be entered in favor of the Respondent. Finding that the procedural basis for dismissal of Petitioner’s § 2254 petition is not debatable, and alternatively finding that Petitioner has not made a “substantial showing of the denial of a constitutional right,” a certificate of appealability is DENIED.

(c); see Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a); Miller-El v. Cockrell,

, 335- 38 (2003); Slack v. McDaniel,

(2000). Petitioner 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 Fourth Circuit. Fed. Rule App. Proc. 22(b); Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a). If Petitioner 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. Petitioner 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 is DIRECTED to forward a copy of this Order to Petitioner and counsel of record for the Respondent. Itis so ORDERED. ( fl ine ROBERT G. DOUMAR UNITED STATES DISTRICT JUDGE Norfolk, Viyginia, _ Date: / / if