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Provost v. Clarke

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

December 19, 2018

MARCEL RENE PROVOST, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young, United States Magistrate Judge

         Marcel Rene Provost, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 3) challenging his convictions in the Circuit Court of the City of Newport News, Virginia (hereinafter, "Circuit Court"). Respondent moves to dismiss on the ground that the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. Despite the provision of notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Provost has not responded.[1] For the reasons set forth below, the Motion to Dismiss (ECF No. 9) will be GRANTED.

         I. PROCEDURAL HISTORY

         Following a guilty plea, Provost was convicted of carnal knowledge of a minor and was sentenced to five years with all five years suspended. (ECF No. 11-1, at 1-2.) The Circuit Court placed him on supervised probation for five years beginning immediately on the date of sentencing, July 18, 2007. (Id. at 2.) Because Provost was a citizen of Canada, the sentencing order authorized the transfer of his probation to Canada. (Id.) On August 9, 2007, the Circuit Court clarified the previous order pertaining to Provost's transfer as follows:

The Court being advised that the defendant's transfer of probation to Canada may not be possible and all evidence and arguments heard, the Court orders the defendant to remain under current probation supervision and to abide by the recommendations and direction of the Probation Officer. The defendant is to remain in the United States until all details are completed for transfer of the defendant's probation to Canada. The motion of defendant by counsel, for the Court to allow the defendant to return to Canada on a temporary pass is denied.

(ECF No. 11-2, at 1.) Provost appeared in the Circuit Court for the motion hearing and was advised of this change. (Id.) On August 16, 2007, the probation office filed a Major Violation Report indicating that Provost failed to report to probation several times in August, failed to register as a sex offender, and ultimately indicating that Provost had absconded and moved to Canada. (ECF No. 11-3, at 1-2.) On August 22, 2007, the Circuit Court issued a capias for his arrest. (ECF No. 11-4, at 1.) Provost was arrested in 2014 and, after challenging his extradition in Canada for two years, he was extradited to Virginia in 2016. (ECF No. 11-5, at 1.)

         On February 26, 2016, the Circuit Court held a revocation hearing, found Provost guilty of violating the terms of his suspended sentence and release, and sentenced him to the originally suspended five-year sentence. (ECF No. 11-6, at 1.) On March 21, 2016, Provost noted his appeal to the Court of Appeals of Virginia. (See ECF No. 11-7, at 1.) On May 18, 2016, the Court of Appeals of Virginia granted his motion to withdraw his appeal. (Id.)

         On March 23, 2017, Provost filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. (See ECF No. 11-8, at 1.) On October 19, 2017, the Supreme Court of Virginia dismissed his habeas petition as untimely under Va. Code Ann. 8.01-654(A)(2) (West 2018). (Id. at 1-2.)

         On February 21, 2018, Provost filed his initial § 2254 petition with this Court.[2] By Memorandum Order entered on March 15, 2018, the Court directed Provost to file his § 2254 petition on standardized forms and noted that the new § 2254 petition would supplant the previously filed petition. (ECF No. 2.) Provost complied with that directive. (ECF No. 3.) In his § 2254 Petition, Provost asserts the following claims for relief:

Claim One: "Probation was given unlawfully to a foreign resident in the original sentence in 2007." (§ 2254 Pet. 5.)[3]
Claim Two: "Ineffective assistance of counsel. Counsel did not bother to verify facts." (Id. at 7.)
Claim Three: "Error in the criminal code associated with Petitioner's case was not corrected until after all legal proceedings were completed." (Id. at 8.)
Claim Four: "Prior approval from immigration officials [] was not considered in the original case in 2006/2007 to authorize the Court to sentence probation to a foreigner." (Id. at 10.)

         II. ...


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