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Eliaba v. Clarke

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

September 7, 2016

DESMON ELIABA, Petitioner,
v.
HAROLD CLARKE, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young United States Magistrate Judge

         Desmon Eliaba, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition, " ECF No. 1) challenging his convictions in the Circuit Court for the County of Gloucester, Virginia ("Circuit Court"). Respondent moves to dismiss on the ground that, inter alia, the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. Eliaba has responded. (ECF No. 18.) For the reasons set forth below, the Motion to Dismiss (ECF No. 12) will be GRANTED.

         I. PERTINENT PROCEDURAL HISTORY

         On November 14, 2011, Eliaba was found guilty of three counts of breaking and entering a residence to commit grand larceny, and three counts of grand larceny, and was sentenced to an active sentence of twelve years. Commonwealth v. Eliaba, Nos. CR11000216-00, CR11000217-00, CR11000220-00 through CR11000222-00, at 1-2 (Va. Cir. Ct. Mar. 9, 2012); Commonwealth v. Eliaba, No. CR11000223-00, at 1 (Va. Cir. Ct. Mar. 20, 2012). On March 9 and 20, 2012, the Circuit Court entered final judgment. Eliaba, Nos. CR11000216-00, CR11000217-00, CR11000220-00 through CR11000222-00, at 3; Eliaba, No. CR11000223-00, at 3. Eliaba appealed. On March 20, 2013, the Supreme Court of Virginia refused Eliaba's petition for appeal. Eliaba v. Commonwealth, No. 121845, at 1 (Va. Mar. 20, 2013).

         On March 28, 2014, [1] Eliaba filed a petition for a writ of habeas corpus with the Circuit Court. See Eliaba v. Clarke, No. CL14-118, at 2 (Va. Cir. Ct. May 20, 2014). In it, Eliaba raised the following claims for relief:

A. The trial court committed plain error when conducting the joinder of offenses involving petitioner and co-defendant where there was no prior motion submitted by the Commonwealth.
B. Defense counsel was ineffective for failing to request separate trials for petitioner and co-defendant.
C. The evidence adduced at trial was insufficient as a matter of law and fact to convict petitioner of the charged offenses.

See Id. at 2 (capitalization corrected). On May 20, 2014, the Circuit Court dismissed Eliaba's petition. Id. at 5. Specifically, the Circuit Court found that Eliaba's petition was "time-barred under Virginia Code § 8.01 -654(A)(2)." Id. at 2. Eliaba did not appeal the Circuit Court's decision to the Supreme Court of Virginia. (See § 2254 Pet. 5; Br. Supp. Mot. Dismiss 2, ECF No. 14.)

         On or about June 14, 2015, Eliaba filed his § 2254 Petition in this Court.[2] (§ 2254 Pet. 15.) In his § 2254 Petition, Eliaba asserts the following claims for relief:

Claim One "The Circuit Court erred when determining the habeas petition was untimely. The petition was placed in the prison internal mailing system prior to the deadline by which to file." (§ 2254 Pet. 6.)[3]
Claim Two "The state courts committed error when refusing to hear Petitioner's appeal of trial court denial of habeas relief. Petitioner did not receive order of Circuit Court dismissal until after filing motion for disposition of case and notice of intended writ of mandamus." (Id. at 7.)
Claim Three "The trial court committed plain error when conducting the joinder of offenses involving Petitioner and co-defendant where there was no prior motion submitted by the Commonwealth." (Id. at 9.)
Claim Four "Defense counsel was ineffective for failing to request separate trials for Petitioner and co-defendant." (Id. at 10.)
Claim Five "The evidence adduced at trial was insufficient as a matter of law and fact to convict Petitioner of the charged offenses." (Id. at 12.)

         Eliaba's first two claims do not provide any basis for federal habeas relief. "[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief." Bryant v. Maryland,848 F.2d 492, 493 (4th Cir. 1988) (citing cases). This is so because Eliaba is detained as a result of the underlying state conviction, not the state collateral proceeding. See ...


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