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Clemmer v. J. Kiser

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

June 9, 2017

MARCUS CLEMMER, Petitioner,
v.
J. KISER, Respondent.

          Marcus Clemmer, Pro Se Petitioner.

          Eugene Murphy, Senior Assistant Attorney General, Richmond, Virginia, for Respondent.

          OPINION

          JAMES P. JONES UNITED STATES DISTRICT JUDGE.

         In this pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, the petitioner Marcus Clemmer, a Virginia inmate, challenges the validity of his confinement on a judgment by the Circuit Court for the City of Danville. After review of the record, I conclude that the respondent's Motion to Dismiss must be granted, because Clemmer's petition is untimely filed.

         I. Background.

         On June 30, 2014, a jury convicted Clemmer of burglary, grand larceny, possession of a controlled substance, and petty larceny third offense and the state court sentenced him to seven years imprisonment. Clemmer did not pursue a direct appeal, and thus his conviction became final ninety days later, on September 28, 2014.[1]

         Clemmer timely filed a petition for a writ of habeas corpus in the Supreme Court of Virginia on September 18, 2015. On April 19, 2016, the court denied his petition as procedurally barred under Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), cert. denied, 419 U.S. 1108 (1975). Clemmer then filed the present petition in this court on July 8, 2016, raising nine claims, as follows:

1. The Supreme Court of Virginia erred in applying Slayton v. Parrigan to his state habeas claims;
2. All of his state habeas claims were fairly presented to the Supreme Court of Virginia;
3. The prosecution withheld exculpatory evidence at his trial;
4. Clemmer was denied the right to counsel on appeal;
5. The evidence was insufficient to prove Clemmer's guilt of possession of a controlled substance;
6. The evidence was insufficient to prove Clemmer's guilt of grand larceny;
7. Clemmer was denied access to the courts during his trial and the post-trial ...

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