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Ostrander v. Director, Virginia Dept. of Corrections

United States District Court, E.D. Virginia, Richmond Division

May 23, 2014

PHILLIP J. OSTRANDER, Petitioner,
v.
DIRECTOR, VIRGINIA DEPT. OF CORRECTIONS, Respondent.

MEMORANDUM OPINION

JAMES R. SPENCER, Senior District Judge.

Phillip J. Ostrander, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition"). Respondent moves to dismiss on the ground that the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. Ostrander has responded. The matter is ripe for disposition.

I. PROCEDURAL HISTORY

A. State Proceedings

After a jury trial and a guilty plea, the Circuit Court for the City of Chesapeake, Virginia ("Circuit Court") entered final judgment against Ostrander for one count of attempted murder and one count of solicitation for murder.[1] The Circuit Court sentenced Ostrander to an active term of thirty years of incarceration. Commonwealth v. Ostrander, Nos. CRO5-3536 and CR05-3537, at 2 (Va. Cir. Ct. Aug. 22, 2006). On July 30, 2008, the Supreme Court of Virginia refused Ostrander's petition for appeal. Ostrander v. Commonwealth, No. 080733, at 1 (Va. July 30, 2008).

On July 30, 2009, Ostrander, by counsel, filed a petition for a writ of habeas corpus in the Circuit Court. Petition for Writ of Habeas Corpus 1, Ostrander v. Dir., Va. Dept Corr., No. CL09001788-00 (Va. Cir Ct. filed July 30, 2009). On January 4, 2011, the Circuit Court granted counsel's motion to withdraw as counsel of record. Ostrander v. Dir., Va. Dep'l Corr., No. CL09001788-00, at 1 (Va. Cir. Ct. Jan. 4, 2011.) On May 24, 2011, the Circuit Court denied Ostrander's habeas petition. Ostrander v. Dir., Va. Dep't Corr., No. CL09001788-00, at 7 (Va. Cir. Ct. May 24, 2011).[2]

Almost two years later, Ostrander filed his notice of appeal on March 18, 2013. On August 5, 2013, the Supreme Court of Virginia dismissed Ostrander's notice of appeal as untimely filed. Ostrander v. Dir., Va. Dep't Corr., No. 130806, at 1 (Va. Aug. 5, 2013).

B. Federal Habeas Petition

On September 10, 2013, Ostrander filed the present § 2254 Petition in this Court. (§ 2254 Pet. 13)[3] In his § 2254 Petition, Ostrander contends:

Claim One: Trial counsel rendered ineffective assistance when he advised Ostrander to reject the Commonwealth's plea offer with a capped sentence of twenty years in exchange for pleading guilty to both solicitation to commit capital murder and attempted capital murder for hire;
Claim Two: The Circuit Court erred in denying Ostrander's motion to dismiss on double jeopardy grounds;
Claim Three: The Circuit Court erred in ruling that venue was proper in the City of Chesapeake;
Claim Four: The Circuit Court erred in refusing to grant a mistrial when the Commonwealth presented evidence of ...

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