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Lockett v. Clark

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

September 14, 2017

TERENCE LOCKETT, Petitioner,
v.
HAROLD W. CLARK, et al., Respondents.

          MEMORANDUM OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.

         Terence Lockett, a Virginia state prisoner proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 ("§2254 Petition, " ECF No. 7) challenging the calculation of his sentence by the Virginia Department of Corrections ("VDOC"). On July 19, 2017, the Magistrate Judge issued a Report and Recommendation wherein he recommended denying Lockett's § 2254 Petition as both barred by the statute of limitations and as meritless. (ECF No. 23.) Lockett has filed objections. (ECF No. 24.) For the reasons that follow, Lockett'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 Lockett's Claims
On August 6, 2013, the Circuit Court for the City of Lynchburg, Virginia sentenced Lockett to thirty days of incarceration for an assault and battery on a family member. (Mem. Supp. Mot. Dismiss Ex. 1 ("Oliver Aff.") ¶ 5, ECF No. 18-1.)
On August 16, 2013, the Circuit Court for the County of Prince Edward, Virginia ("Circuit Court") "revoked a sentence previously suspended on October 6, 2010, for Possession of a Schedule II Narcotic (Case Number CR10000254-01). The Court sentenced Lockett to 8 years and 6 months with 8 years suspended for a net sentence of 6 months." (Id. ¶ 6.) The Circuit Court also "revoked a sentence previously suspended on November 13, 2006, for Driving Without a License (Case Number CR07000977-02). The Court sentenced Lockett to 12 months." (Id. ¶ 7.)
On May 2, 2014, Lockett appeared before the Circuit Court and entered an Alford[1] plea to charges of attempted robbery, use of a firearm in the commission of a felony, possession of a firearm by a convicted felon, statutory burglary, conspiracy to commit statutory burglary, and conspiracy to commit robbery. (Id. Encl. B, at 1-2.) The Circuit Court sentenced Lockett to a total of 68 years of incarceration, with 59 years suspended. (Id. at 2.) The Circuit Court specifically noted: "The total active period of incarceration is nine (9) years of which five (5) years is a mandatory minimum sentence." (Id. (emphasis omitted).) The Circuit Court also directed that Lockett "receive credit for time served from his arrest on April 21, 2013. That time shall run concurrent with the time he was serving for the following probation violations: CR07000928-02, CR07000930-02, CR07000977-02, and CR10000254-01." (Id. at 3 (emphasis omitted).)
"Lockett became a state responsible offender on July 3, 2014." (Oliver Aff. ¶ 9.) Per the Circuit Court's order, "jail credit was ordered to run concurrently with the probation violation sentences . . ., as well as run concurrently with [Lockett's] new 9 year sentence." (Id. ¶ 10.) Because the Virginia Department of Corrections ("VDOC") generally does not "run jail time concurrently with other sentences, [the Court & Legal Services Section] contacted the Prince Edward Circuit Court for clarity on the interpretation of its June 9, 2014 order." (Id. ¶ 11.) The Circuit Court advised the Court & Legal Services Section to contact the Commonwealth's Attorney's office "because the language in the order was taken from a plea agreement drafted by the CA's office." (Id.) The Commonwealth's Attorney's office "informed [the VDOC] that the plea agreement did not intend for any time to run concurrently. Rather, the office simply intended for Lockett to receive additional jail credit, which he would have received in any case towards the probation violations pursuant to Virginia Code §53.1-187." (Id. (spacing corrected).)
Subsequently, the Court & Legal Services Section "applied jail credit for the time period of April 21, 2013, through June 9, 2014 (when the Court's order was entered) towards Lockett's 9 year sentence and towards his 18 month probation violation sentence." (Id. ¶ 12.) Lockett's anticipated good time release date is August 3, 2021. (Id. ¶ 13; see Id. Encl. C, at 1.)
On February 20, 2015, Lockett filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. Petition for Writ of Habeas Corpus at 1, Lockett v. Clarke, No. 150304, (Va. filed Feb. 20, 2015). In his petition, Lockett alleged that the VDOC had incorrectly calculated his sentence because his 9-year sentence was supposed to run concurrently, not consecutively, with his 18-month sentence, and that VDOC's failure to correctly calculate his sentence violated Lockett's plea agreement. Id. at 3-4. On July 27, 2015, the Supreme Court of Virginia dismissed Lockett's petition. Lockett v. Clarke, No. 150304, at 1 (Va. July 27, 2015).
On June 14, 2016, Lockett filed his initial § 2254 Petition in the Western District of Virginia.[2] (ECF No. 1, at 20.)[3] By Order entered on June 22, 2016, the Western District of Virginia transferred Lockett's initial § 2254 Petition to this Court. (ECF No. 3, at 1.) By Memorandum Order entered on July 26, 2016, the Court directed Lockett to complete and return the standardized form for filing a § 2254 Petition. (ECF No. 5, at 1.) The Court received Lockett's § 2254 Petition on August 12, 2016. (§ 2254 Pet. 1.) In his § 2254 Petition, Lockett asserts the following claims for relief:
Claim One "Violations of the Constitution of the United States of America including the 1st, 5th, 6th, 8th, and 14thAmendments, and Sections 1, 3, 8, 9, 11, 14, 15 of the Constitution of the Commonwealth of Virginia." (Id. at 5.)
Claim Two "Violations of the Constitution of the United States of America including the 1st, 5th, 6th, 8th, and 14thAmendments, and Sections 1, 3, 8, 9, 11, 14, 15 of the Constitution of the Commonwealth of Virginia." (Id. at 13.)
Claim Three "Violations of the Constitution of the United States of America including the 1st, 5th, 6th, 8th, and 14thAmendments, and Sections 1, 3, 8, 9, 11, 14, 15 of the Constitution of the Commonwealth of Virginia." (Id. at 15.)
Claim Four "Violations of the Constitution of the United States of America including the 1st, 5th, 6th, 8th, and 14thAmendments, and Sections 1, 3, 8, 9, 11, 14, 15 of the Constitution of the ...

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