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Dorsey v. Clarke

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

April 21, 2016

Akil Dorsey, Petitioner,
v.
Harold Clarke, Respondent.

MEMORANDUM OPINION

James C. Cacheris, United States District Judge

Akil Dorsey, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of robbery and firearms offenses in the Circuit Court of the City of Alexandria. On October 27, 2015, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief. Dorsey was provided the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and he filed a reply on December 4, 2015. Accordingly, the matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.

I. Background

On December 5, 2013, Dorsey entered a negotiated plea of guilty to two counts of robbery and two counts of use of a firearm in the commission of robbery (second or subsequent offense). Case Nos. CF13000309 and CF13000310. On March 7, 2014, Dorsey received a sentence of 20 years in prison for each robbery conviction and 3 and 5 years for the firearms offenses. The court suspended both robbery sentences, leaving Dorsey with a total active sentence of eight (8) years incarceration. Dorsey took no direct appeal.

On December 8, 2014, Dorsey filed a petition for a state writ of habeas corpus in the trial court, raising the following claims:

1. Counsel was ineffective for failing to request the trial court to run the firearm sentences concurrently.
2. The trial court erred by failing to consider running the sentences for the firearms convictions concurrently rather than consecutively.

The circuit court dismissed the petition on March 20, 2015. Specifically, the court held that claim 1 was "dismissed for failure to establish a claim of ineffective assistance of counsel under either prong of Strickland v. Washin|gton [466 U.S. 668 (1984)], " and claim 2 was "dismissed under the rule of Slavton v. Parrigan [205 S.E.2d 680 (1974)]." Case No. CL14004744, Final Order at 6-7. Dorsey did not receive the Final Order until May 26, 2015. Dorsey noticed an appeal of the decision in the Supreme Court of Virginia on June 8, 2015, and on July 13, 2015, the Court denied Dorsey's motion for an extension of time to file a petition for appeal. Thereafter, Dorsey filed no petition for appeal, and the appeal was administratively terminated without adjudication on August 14, 2015.

Dorsey then turned to the federal forum and timely filed the instant application for relief pursuant to 28 U.S.C. §2254 on August 16, 2015.[1]In it, he raises the following claims:

1. The Virginia Supreme Court's refusal to accept his notice of appeal as timely constituted a violation of the Fifth and Fourteenth Amendments to the United States Constitution.
2. Defense counsel was ineffective for failing to request the trial court to run the sentences for the firearms convictions concurrently.
3. The trial court erred in failing to consider running the sentences for the firearms convictions concurrently as opposed to consecutively.

As noted above, respondent has filed a Rule 5 Answer and a Motion to Dismiss the petition, along with the notice required by Roseboro. 528 F.2d at 309, and petitioner has filed a ...


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