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Anderson v. Clarke

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

November 26, 2014

KIRK L. ANDERSON, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

MEMORANDUM OPINION

JOHN A. GIBNEY, Jr., District Judge.

Kirk L. Anderson, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his convictions in the Circuit Court of the City of Richmond, Virginia ("Circuit Court"). Respondent moves to dismiss, inter alia, on the ground that the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. Despite sending appropriate Roseborol [1] notice with the Motion to Dismiss, Anderson has not responded, but instead filed a document entitled "Brief in Support of Motion To Hearing." (ECF No. 19.) The matter is ripe for disposition.

I. PROCEDURAL HISTORY

After a bench trial, the Circuit Court found Anderson guilty of two counts of rape and two counts of indecent liberties. On July 26, 2010, the Circuit Court entered final judgment with respect to the above convictions and sentenced Anderson to an active sentence of thirty-three years in prison. See Petition for Writ of Habeas Corpus at 2, Anderson v. Clarke, No. CL12-2612 (Va. Cir. Ct. filed June 14, 2012). Anderson appealed his convictions. On August 1, 2011, the Supreme Court of Virginia refused Anderson's petition for appeal. Anderson v. Commonwealth, No. 110850, at 1 (Va. Aug. 1, 2011).

On June 14, 2012, Anderson filed a petition for a writ of habeas corpus in the Circuit Court. Petition for Writ of Habeas Corpus at 1, Anderson v. Clarke, No. CL12-2612 (Va. Cir. Ct. filed June 14, 2012). On October 9, 2012, the Circuit Court dismissed the petition. Anderson v. Clarke, No. CL12-2612, at 4 (Va. Cir. Ct. Oct. 9, 2012). On November 16, 2012, Anderson filed a notice of appeal with the Circuit Court. Notice of Appeal at 1, Anderson v. Clarke, No. CL12-2612 (Cir. Ct. filed Nov. 16, 2012).

Anderson filed his petition for appeal on January 11, 2013. Petition for Appeal at 1, Anderson v. Clarke, No. 130075 (Va. filed Jan. 11, 2013). On March 14, 2013, the Supreme Court of Virginia found "that the appeal was not perfected in the manner provided by law because the appellant failed to timely file a notice of appeal and petition for appeal" pursuant to Supreme Court of Virginia Rules 5:9(a) and 5:17(a)(1). Anderson v. Clarke, No. 130075, at 1 (Va. Mar. 14, 2013). The Supreme Court of Virginia also denied Anderson's petition for rehearing. Anderson v. Clarke, No. 130075, at 1 (Va. June 13, 2013).

On July 31, 2013, [2] Anderson filed his § 2254 Petition. In his § 2254 Petition, Anderson asserts:[3]

Claim One "Fifth Amendment Violation, Double Jeopardy." (§ 2254 Pet. 6.)[4]

Claim Two "Sixth Amendment, Ineffective Counsel." ( Id. at 7.)

Claim Three "5th and 14th Amendments, Insufficient Evidence." ( Id. at 9.)

Claim Four "14th Amendment, 5th Amendment[, ] Void Sentence, Actual Innocence." ( Id at 11.)

II. ANALYSIS

A. Statute of Limitations

Respondent contends that the federal statute of limitations bars Anderson's claims. Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2244 to establish a one-year period of limitation for the filing of a petition for a writ of habeas corpus by a person in custody ...


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