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Nedd v. Clarke

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

May 25, 2017

JOWARSKI RUSSELL NEDD, Petitioner,
v.
HAROLD W. CLARKE, DIRECTOR, Respondent.

          MEMORANDUM OPINION

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

         Jowarksi Russell Nedd, a Virginia state prisoner proceeding pro se and in forma pauperis, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his conviction in the Circuit Court of the County of Accomack, Virginia ("Circuit Court") for capital murder, robbery, and use of a firearm in commission of a felony and resulting life sentence. Respondent moves to dismiss the § 2254 Petition, inter alia, as barred by the statute of limitations. Nedd has responded. For the reasons stated below, the Motion to Dismiss will be GRANTED.

         I. PROCEDURAL HISTORY

         A jury convicted Nedd of capital murder, robbery, and use of a firearm in the commission of a felony. The Court sentenced Nedd to life in prison on the murder charge, fifteen years in prison on the robbery charge, and three years in prison on the use of a firearm charge, with all sentences to run consecutive. Commonwealth v. Nedd, Nos. 09CR051-01 through -02 & 09CR086, at 1-2 (Va. Cir. Ct. July 1, 2010). Nedd appealed. On February 9, 2011, the Court of Appeals of Virginia denied Nedd's petition for appeal. (ECF No. 13-1, at 1.) On December 6, 2011, the Supreme Court of Virginia dismissed Nedd's subsequent petition for appeal. (ECF No. 13-2.)

         On November 22, 2016, [1] Nedd filed his § 2254 Petition in this Court. In his § 2254 Petition, he asserts the following grounds for relief:[2]

Claim One: "Petitioner was denied the effective assistance of counsel when counsel failed to convey to petitioner a formal plea offered by the Commonwealth, place it on the official record or otherwise explain its significance." (§2254 Pet. 3.)
Claim Two: "Petitioner was denied a fundamental right to due process in the selection of a jury free from bias and partiality and the trial court denied this right when it refused to grant a motion for change of venue." (Id. at 7.)
Claim Three: "My constitutional right to due process was denied when the trial court refused to allow the sequestration of prospective jurors during voir dire." (Mat 11.)
Claim Four: "My constitutional right to due process was denied when the trial court refused to allow two instructions be given to the jury for consideration." (Id. at 12.)
Claim Five: "The evidence in its totality was insufficient to establish guilt beyond a reasonable doubt, which violated my Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution." (Id. at 14.)

         II. ANALYSIS

         A. Statute of Limitations

         Respondent contends that the federal statute of limitations bars Nedd's claims. Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2244 to establish a one-year period of limitation for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. Specifically, 28 U.S.C. § 2244(d) now reads:

1. A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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