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Kirby v. Clarke

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

May 15, 2018

QUINDELL M. KIRBY, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Quindell M. Kirby, a Virginia inmate proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1). Respondent moves to dismiss, inter alia, on the ground that the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. Despite being given Roseboro[1] notice, Kirby has not responded. For the reasons set forth below, the Motion to Dismiss (ECF No. 4) will be granted.

         I. PROCEDURAL HISTORY

         A. State Proceedings

         On September 6, 2012, Kirby was convicted in the Circuit Court for the County of Chesterfield ("Circuit Court") of second-degree murder and use of a firearm during the commission of murder. See Commonwealth v. Kirby, Case Nos. CR12F00213-01, CR12F00213-02, at 1 (Va. Cir. Ct. Sept. 18, 2012). On December 13, 2012, Kirby was sentenced to a total of twenty years of imprisonment. See Commonwealth v. Kirby, Case Nos. CR12F00213-01, CR12F00213-02, at 1 (Va. Cir. Ct. Dec. 27, 2012). Kirby appealed.

         On March 4, 2015, the Supreme Court of Virginia refused Kirby's petition for appeal. Kirby v. Commonwealth, No. 141442, at 1 (Va. Mar. 4, 2015). On April 24, 2015, the Supreme Court of Virginia denied Kirby's petition for rehearing. Kirby v. Commonwealth, No. 141442, at 1 (Va. Apr. 24, 2015).

         On April 22, 2016, Kirby filed a petition for a writ of habeas corpus in the Circuit Court. Petition for a Writ of Habeas Corpus at 1, Kirby v. Commonwealth, No. CL16HC1147-00 (Va. Cir. Ct. filed Apr. 22, 2016). On August 5, 2016, the Circuit Court dismissed Kirby's petition finding that his claims were procedurally defaulted. Kirby v. Commonwealth, No. CL16HC1147-00, at 2-3 (Va. Cir. Ct. Aug. 5, 2016). Kirby did not appeal the denial of his petition for a writ of habeas corpus to the Supreme Court of Virginia.

         B. Federal Habeas Petition

         On July 20, 2017, Kirby executed and placed his § 2254 Petition in the prison mail system for transmission to this Court. (§ 2255 Mot. 61.)[2] The Court deems the § 2254 Petition filed as of this date. See Houston v. Lack, 487 U.S. 266, 276 (1988). Kirby asserts that he is entitled to habeas relief based on the following:

Claim One "Due Process-Petitioner, an indigent, was denied funds necessary to employ an expert witness to counter the prosecution's expert (or to hire an investigator)." (§ 2255 Mot. 9.)
Claim Two "A fair trial-motion objection to jurisdiction and/or venue was denied." (Id. at 27.)
Claim Three "Confrontation of witness-the Petitioner was denied the opportunity to effectively confront and cross-examine the witness against him." (Id. at 51.)
Claim Four "Due Process-the prosecution failed to disclose 'Brady' . . . material that was in the hands of investigating agencies." (Id. at 56.)

         II. ...


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