United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young United States Magistrate Judge
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.
PERTINENT PROCEDURAL HISTORY
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).
March 28, 2014,  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
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
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.)
about June 14, 2015, Eliaba filed his § 2254 Petition in
this Court. (§ 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.)
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
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 ...