United States District Court, E.D. Virginia, Richmond Division
QUINDELL M. KIRBY, Petitioner,
HAROLD W. CLARKE, Respondent.
E. Payne Senior United States District Judge
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 notice, Kirby has not responded. For the
reasons set forth below, the Motion to Dismiss (ECF No. 4)
will be granted.
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.
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).
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.
Federal Habeas Petition
20, 2017, Kirby executed and placed his § 2254 Petition
in the prison mail system for transmission to this Court.
(§ 2255 Mot. 61.) 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
Claim Four "Due Process-the prosecution failed to
disclose 'Brady' . . . material that was in the hands
of investigating agencies." (Id. at 56.)