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Burrell v. Zook

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

November 30, 2016

JAMES DANIEL BURRELL, Petitioner,
v.
DAVID ZOOK, Respondent.

          MEMORANDUM OPINION (ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE.

         James Daniel Burrell, a Virginia inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1) challenging his convictions in the Circuit Court for the County of Brunswick, Virginia ("Circuit Court"). On October 17, 2016, the Magistrate Judge issued a Report and Recommendation wherein he recommended dismissing Burrell's § 2254 Petition as barred by the relevant statute of limitations. (ECF No. 20.) Burrell has filed objections. (ECF No. 23.) For the reasons that follow, Burrell's objections will be overruled, the Report and Recommendation will be accepted and adopted, and the action will be dismissed.

         I. THE REPORT AND RECOMMENDATION

         The Magistrate Judge made the following findings and recommendation:

         A. Procedural History and Burrell's Claims

         On June 2, 2011, a jury convicted Burrell of two counts of first degree murder and two counts of use of a firearm in commission of a felony, and it fixed his sentence at two life sentences plus eight years of incarceration. (ECF No. 11-2, at 2-3.) On May 17, 2012, the Circuit Court entered final judgment and sentenced Burrell to two life sentences plus eight years. (ECF No. 11-1, at 1-2.) On August 12, 2013, the Supreme Court of Virginia refused Burrell's petition for appeal. (ECF No. 1\-A, at 1.) The United States Supreme Court denied Burrell's petition for writ of certiorari on April 7, 2014. Burrell v. Virginia, 134 S.Ct. 1791 (2014).

         On November 18, 2014, Burrell filed a petition for a writ of habeas corpus with the Circuit Court. (ECF No. 11-5, at 1.) On March 26, 2015, the Circuit Court denied and dismissed Burrell's petition. (See ECF No. 11-6, at 8.) Specifically, the Circuit Court found that "Burrell's petition [was] untimely pursuant to Virginia Code § 8.01-654(A)(2).[1] (Id. at 2.) On February 16, 2016, the Supreme Court of Virginia refused Burrell's petition for appeal. (ECF No. 11-7, at 1.)

         Burrell asserts that he placed his § 2254 Petition in the prison mailing system for mailing to this Court on September 8, 2015. (§ 2254 Pet. 15.) The Court finds Burrell's assertion to be incredible, as the envelope in which Burrell mailed his § 2254 Petition is postmarked February 23, 2016 (ECF No. 1-1, at 1), and the Court did not receive his § 2254 Petition until February 25, 2016 (§ 2254 Pet. 1.) The Court believes that Burrell mailed his § 2254 Petition in February 2016. Nevertheless, as discussed infra, even using September 8, 2015 as the date when Burrell filed his § 2254 Petition, the § 2254 Petition is untimely. Thus, the Court utilizes September 8, 2015 as the filed date. See Houston v. Lack, 487 U.S. 266, 276 (1988). In his § 2254 Petition, Burrell asserts the following claims for relief;

Claim One "Violation of Burrell's Sixth and Fourteenth Amendment rights to a trial by an impartial jury." (§ 2254 Pet. Attach. 2.)[2]
Claim Two "Violation of Burrell's Sixth and Fourteenth Amendment rights to the sitting of an impartial jury panel." (Id.)
Claim Three "Violation of Burrell's Fourteenth Amendment due process rights as a result of insufficient evidence." (Id.)
Claim Four "Ineffective assistance of trial counsel for withdrawing his -motion for mistrial." (Id.)

         B. ...


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