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Lowe v. Zook

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

July 19, 2016

ALFONZO NATHANIEL LOWE, Petitioner,
v.
DAVID W. ZOOK, Respondent.

          MEMORANDUM OPINION

          John A. Gibney, Jr., United States District Judge

         Alfonzo Nathaniel Lowe, a Virginia inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition"). Respondent has moved to dismiss the action on the grounds that it is barred by the statute of limitation. For the reasons that follow, the Motion to Dismiss (ECF No. 7) will be GRANTED.

         A. Pertinent State Procedural History

         Following a jury trial, Lowe was convicted in the Circuit Court of the City of Portsmouth ("Circuit Court") of malicious wounding, robbery, attempted murder, armed burglary, and four counts of use of a firearm in the commission of a felony and was sentenced to fifty years of imprisonment. (ECF No. 9-6, at 1-2.) Lowe appealed his convictions. On September 6, 2011, the Supreme Court of Virginia refused Lowe's Petition for Appeal. (ECF No. 9-4, at 1-2.)

         On August 30, 2012, Lowe filed a petition for a writ of habeas corpus with the Circuit Court. (ECF No. 9-6.) On January 4, 2013, the Circuit Court dismissed the petition. (Id. at 17.) Lowe appealed. On November 13, 2013, the Supreme Court of Virginia refused Lowe's petition for appeal. (ECF No. 9-7, at 1.)

         On October 8, 2015, Lowe executed his § 2254 Petition and placed it in the prison mail system.[1] (§ 2254 Pet. 15.) In his § 2254 Petition, Lowe contends that he is entitled to relief upon the following grounds: [2]

Claim 1 Petitioner's petition for appeal on direct appeal was not reviewed by a three-judge panel of the Court of Appeals of Virginia.
Claim 2 The evidence was insufficient to convict petitioner due to unreliable eyewitness identifications, and witness testimony that was not credible.
Claim 3(a) Counsel failed to investigate and move for discovery and exculpatory evidence- witness Dionne Charles had allegedly placed petitioner at the scene, but had not been subpoenaed by the Commonwealth.
Claim 3(b) Counsel failed to request a continuance when a crucial alibi witness was not available.
Claim 3(c) Counsel's lack of preparation resulted in the exclusion of certain testimony from Officer Willis regarding evidence recovered at the crime scene.
Claim 3(d) Counsel failed to investigate the facts and interview crucial witnesses that would have changed the outcome of the trial.
Claim 3(e) Counsel failed to impeach Detective Ferrell's suggestive photo array and other inconsistencies in his testimony.
Claim 3(f) Counsel was ineffective for failing to strike juror Donald Franklin because he knew Roy lent Jenkins and they may have strategized before trial.
Claim 3(g) Counsel was ineffective because he did not poll jurors who had questions about the evidence.
Claim 3(h) Counsel failed to call witness Corey Lowe who was key to proving ...

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