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Neal v. Clarke

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

January 2, 2019

Kevin Lamont Neal, Petitioner,
Harold W. Clarke, Respondent


          T.S. Ellis, United States District Judge.

         Kevin Lamont Neal, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions of abduction, robbery, carjacking, and use of a firearm in the Circuit Court for the City of Richmond. Dkt. Nos. 1, 5. Respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Dkt. Nos. 13-15. Petitioner was provided the notice required by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. Dkt. No. 16. Petitioner filed a traverse.[1] Dkt. No. 19. The Motion to Dismiss is now ripe for adjudication. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.


         On direct appeal, the Court of Appeals of Virginia stated the facts of the case as follows. On the day in question, the victim

was walking away from his vehicle [when] two gunmen, one of whom was the [petitioner], approached him while pointing their guns at him. The gunmen told the victim to "get on the truck." The men asked the victim if he had any guns or drugs and then checked his pockets, removing money from him. The gunmen also handcuffed the victim's hands behind his back. The victim stated his cell phone was attached to his waist by clip and the phone rang. He testified "[T]hey snatched my cell phone and my keys feel out [of] my hoodie jacket... pocket."

         Record No. 1958-13-2 (some alterations in original).

The victim testified that the two gunmen wore "little ski masks" that covered the bottom of their faces. He also stated that his car keys fell to the ground and one of the gunmen retrieved the keys. The victim testified that as the man was rising back up, his mask "came down" and the victim had a "clear look" at the man's face for a "couple" of seconds. The victim estimated that he was several inches away from the man's face, and he stated it was sunny when the incident took place. The victim positively identified [petitioner] in court as the gunman whose mask had briefly lowered. Upon further questioning, he agreed that he had no question about his identification.
Additionally, about six weeks after the incident, the victim identified [petitioner] from a photo array prepared by Detective Brian Taylor. Detective Taylor testified on cross-examination that during one of his meetings with the victim, the victim told him that the mask of the gunman fell during the robbery and he thought he could identify that suspect.
Further, the victim provided the police with the license plate information of the green Mercedes in which one of the gunmen left the crime scene. The car was registered to the [petitioner] and, when officers searched the address located on the vehicle registration shortly after the crimes, [2] they found in a bedroom of the house items containing [petitioner's] name, a mask, clothing matching the victim's description of the suspect's clothing, and the victim's cell phone. They also found guns in the house, and the green Mercedes was parked outside of the house.

Id. (footnote added). The day of petitioner's trial, his daughter provided trial counsel with documents which, according to trial counsel's notes, included only financial documents. Case Nos. CR13-F-1483-1485, 1487, 1489, Trial Counsel's Notes.


         A petition for a writ of habeas corpus must be dismissed if filed later than one year after (1) the judgment becomes final; (2) any state-created impediment to filing a petition is removed; (3) the United States Supreme Court recognizes the constitutional right asserted; or (4) the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D).

         In the instant case, petitioner was convicted of abduction, robbery, carjacking, and use of a firearm in the Circuit Court for the City of Richmond on October 18, 2013. Nos. CR13-F-1483-1485, 1487, 1489. Petitioner filed a direct appeal in the Virginia Court of Appeals, which denied the petition for appeal on June 19, 2014, and again by a three judge panel on January 15, 2015. Record No. 1958-13-2. Petitioner then appealed to the Supreme Court of Virginia, which refused his appeal on August 20, 2015. Record No. 150281. Therefore, petitioner's convictions became final on November 18, 2015, the last date he could have petitioned the Supreme Court of the United States for a writ of certiorari.[3] On November 17, 2016, petitioner filed a state habeas corpus petition in the Supreme Court of Virginia which was dismissed as untimely on August 15, 2017. Record No. 161648. On February 6, 2017, at the earliest, petitioner filed the instant federal petition.[4]

         In calculating the limitations period, the Court generally must exclude the time during which state collateral proceedings pursued by a petitioner were pending, 28 U.S.C. § 2244(d)(2); however, where the state collateral proceeding is not timely filed, the statute of limitations is not tolled while such proceedings are pending. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)"). Here, because petitioner's state habeas petition was deemed untimely, the limitations period ran unchecked from November 18, 2015, the date petitioner's convictions became final, until February 6, 2017, when the instant petition was filed, at which point, over fourteen months passed. Therefore, the instant petition was filed over two months beyond the one-year limit. Accordingly, the petition is untimely under § 2244(d), unless petitioner can establish that the statute of limitations does not apply or should otherwise be tolled. See Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002) (requiring notice and the opportunity to respond before a sua sponte dismissal under § 2244(d)).


         Petitioner does not argue that he is entitled to equitable tolling. Rather, in his petition and traverse, petitioner asserts that he is actually innocent of the crimes of which he was convicted.[5]In McOuiggin v. Perkins, 569 U.S. 383 (2013), the Supreme Court held that a convincing claim of actual innocence can overcome the § 2244(d) statute of limitations; however "tenable actual-innocence gateway pleas are rare" and limited to cases where, "'in light of the new evidence, no juror, acting reasonably, would have voted to find [petitioner] guilty beyond a reasonable doubt."' McOuiggin, 569 U.S. at 386 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

         Thus, in order to overcome the statute of limitations, the evidence provided by petitioner must be new and credible. "Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Schlup, 513 U.S. at 316. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Id. at 324. '"Late-offered* testimony is not 'new evidence' if the substance of such testimony ...

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