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Hanks v. Prince Edward Circuit Court

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

May 9, 2018

WINSTEN ALPHONSO HANKS, Petitioner,
v.
PRINCE EDWARD CIRCUIT COURT, et ai, Respondents.

          REPORT AND RECOMMENDATION

          Roderick C. Young United States Magistrate Judge

         Winsten Alphonso Hanks, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 3) challenging his conviction in the Circuit Court for the County of Prince Edward, Virginia ("Circuit Court"). Respondent moves to dismiss, arguing that Hanks's § 2254 Petition is barred by the statute of limitations. Despite the provision of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notice, Hanks failed to respond.[1] The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons that follow, it is RECOMMENDED that the § 2254 Petition be DENIED.

         A. Procedural History

         1. Criminal Proceedings

         After a jury trial, Hanks was convicted of driving after being adjudicated a habitual offender and driving while intoxicated, second offense, and was sentenced by the Circuit Court to five years and twelve months of incarceration respectively. Commonwealth v. Hanks, Nos. CR13000249-00 & CR13000268-00 (Va. Cir. Ct. Jan. 7, 2014). Hanks appealed. On May 23, 2014, the Court of Appeals of Virginia dismissed his appeal for failing to file a timely petition for appeal. (ECF No. 14-1, at 23.) Hanks did not appeal to the Supreme Court of Virginia.

         2. State Habeas Proceedings

         It appears that Hanks first attempted to file a petition for a writ of habeas corpus in the Court of Appeals of Virginia. (See ECF No. 14-1, at 19.) The Court of Appeals of Virginia found that "no exceptional circumstances [existed to] justif[y] exercise of [its] original jurisdiction" and dismissed the petition for a writ of habeas corpus "without prejudice to the right of petitioner to file a petition for relief in the appropriate circuit court." (Id. (citing White v. Garraghty, 341 S.E.2d 402, 406 (Va. Ct. App. 1986)).)

         On March 24, 2016, Hanks filed a petition for a writ of habeas corpus with the Supreme Court of Virginia. (ECF No. 14-1, at 3.) On June 10, 2016, the Supreme Court of Virginia dismissed the petition for writ of habeas corpus as untimely. (Id. at 1 (citing Va. Code Ann. § 8.01-654(A)(2)).)

         3. § 2254 Petition

         On or around April 23, 2017, Hanks mailed a letter to this Court complaining that counsel had not filed a direct appeal on his behalf. (ECF No. 1, at 1; ECF No. 1-4, at 1.)[2] By Memorandum Order entered on May 10, 2017, the Court directed Hanks to complete and return the standardized form for filing a 28 U.S.C. § 2254 petition. (ECF No. 2.) On May 25, 2017, the Court received the § 2254 Petition on the standardized form. (ECF No. 3.) In his § 2254 Petition, Hanks asserts the following claim for relief:[3]

         Claim One: "Counsel failed to perfect first appeal as of right." (§ 2254 Pet. 5.)

         B. Statute of Limitations

         Respondent contends that the federal statute of limitations bars Hanks's claim. 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 ...

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