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Formica v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

June 1, 2017

MICHAEL JOSEPH FORMICA, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski United States District Judge

         Michael Joseph Formica, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment by the Orange County Circuit Court. Respondent filed a motion to dismiss Formica's § 2254 petition, and Formica responded, making the matter ripe for disposition. After review of the record, the court concludes that Formica's petition is time-barred, requiring the motion to dismiss to be granted.

         I. Background

         On April 27, 2013, after Formica entered Alford pleas, [1] the Orange County Circuit Court entered a final order convicting Formica to two felony counts of violating a protective order, third offense within twenty years, and five misdemeanor counts of violating a protective order. The court sentenced Formica to a total of fifteen years' incarceration with all but six months and ten days suspended.

         Formica attempted to file a pro se appeal, but the Virginia Court of Appeals dismissed the petition as untimely on August 30, 2013. The court subsequently denied his petition for a delayed appeal.

         Formica then filed a petition for a writ of habeas corpus in the Virginia Supreme Court on August 14, 2014. Formica alleged nine claims of ineffective assistance and one claim that he had been denied access to the courts and his transcripts. On July 15, 2015, the state habeas court rejected his claims pursuant to Anderson v. Warden, 281 S.E.2d 885 (Va. 1981), Strickland v. Washington, 466 U.S. 668 (1984), and Va. Code § 8.01-654. The court refused rehearing on October 15, 2015.

         On July 18, 2016, Formica filed the instant petition. He asserts thirty allegations, including four claims of court error and twenty-six claims of ineffective assistance of counsel.

         II. Time-Bar Standard of Review

         Under the Anti-terrorism Effective Death Penalty Act (AEDPA), a one-year period of limitation for federal habeas corpus runs 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 prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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