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Thomas v. Fleming

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

October 10, 2014

WILLIAM RAY THOMAS, Petitioner,
v.
LESLIE FLEMING, et al., Respondents.

MEMORANDUM OPINION (DISMISSING § 2254 PETITION)

HENRY E. HUDSON, District Judge.

William Ray Thomas, a Virginia inmate proceeding with counsel, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254. The Warden of Keen Mountain Correctional Center ("Respondent")[1] has moved to dismiss on the grounds that, inter alia, the relevant statute of limitation bars the § 2254 Petition. For the reason: that follow, the Motion to Dismiss (ECF No. 11) will be granted.

I. PROCEDURAL HISTORY

As pertinent here, following a jury trial in the Circuit Court of the County of Stafford ("Circuit Court"), Thomas was convicted of robbery and grand larceny from the person.[2] See Ali v. Commonwealth, 701 S.E.2d 64, 65 (Va. 2010). Thomas appealed. Id. On November 4, 2010, the Supreme Court of Virginia reversed and dismissed Thomas's conviction for larceny from the person, but affirmed his conviction for robbery. Id. at 68.

On November 1, 2011, Thomas filed a petition for a writ of habeas corpus with the Circuit Court. Pet. for Writ of Habeas Corpus at 1, Thomas v. Warden of the Sussex I State Prison, CL XXXXXXXX-XX (Va. Cir. Ct. Nov. 1, 2011). On January 8, 2012, the Circuit Court denied the petition. Thomas v. Warden of the Sussex I State Prison, CL 11001284-00, at 12 (Va. Cir. Ct. Jan. 8, 2012). Thomas appealed.

On June 19, 2012, the Supreme Court of Virginia dismissed Thomas's appeal because the petition for appeal failed to comply with the requirements of Virginia Supreme Court Rule 5:17(c)(1)(iii), reasoning that it did not list the specific errors in the lower court proceeding upon which Thomas intended to rely. Thomas v. Warden, Sussex I State Prison, No. 120538, at 1 (Va. S.Ct. June 19, 2012). On September 21, 2012, the Supreme Court of Virginia denied Thomas's petition for rehearing. Thomas v. Warden, Sussex I State Prison, No. 120538, at 1 (Va. S.Ct. Sept. 21, 2012).

On June 20, 2013, Thomas, by counsel, filed his initial § 2254 Petition (ECF No. 1) with this Court. Thomas demands relief upon the following grounds:

Claim I The prosecutor "committed misconduct... by improperly arguing two takings without any evidence to support separate takings." (Am. § 2254 Pet. 5, ECF No. 10)[3]
Claim II The "Circuit Court improperly instructed the jury that the Defendant could be convicted of robbery and grand larceny from the person though there was no evidence of two separate takings." ( Id. at 7.)
Claim III Thomas failed to receive the effective assistance of counsel because trial counsel failed to present and argue the fact that there was no evidence presented as to two takings. ( Id. at 8-9)
Claim IV Thomas failed to receive the effective assistance of counsel because when the Supreme Court of Virginia dismissed the grand larceny charge, counsel failed to assist the defendant in obtaining a new trial or sentencing as to the robbery. ( Id. at 11.)

II. STATUTE OF LIMITATIONS

Section 101 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended 28 U.S.C. § 2244 to establish a one-year limitations period for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. Specifically, 28 U.S.C. § 2244(d) now reads:

1. A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...

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