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Abdu v. Clarke

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

January 31, 2019

ELMUIZ ABDU, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION

          LAWRENCE R. LEONARD UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on pro se Petitioner Elmuzi Abdu's ("Petitioner") Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 ("the Petition"), ECF No. 1, and Respondent, Harold W. Clarke, Director, Virginia Department of Corrections' ("Respondent") Motion to Dismiss the Petition for Writ of Habeas Corpus. ECF No. 10. The matter was referred for disposition to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. For the following reasons, the undersigned RECOMMENDS that Respondent's Motion to Dismiss, ECF No. 10, be GRANTED, and the Petition, ECF No. 1, be DISMISSED WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On June 3, 2000, Petitioner pled guilty in the Circuit Court of Fairfax County, Virginia ("Trial Court") and was convicted of Murder. ECF No. 9, attach. 1 at 34. On May 3, 2001, Petitioner was sentenced by the Trial Court and is currently serving a thirty-one-year sentence. Id. Petitioner is incarcerated at Deerfield Correctional Center, a facility owned and operated by the Virginia Department of Corrections ("VDOC"). Id. In the matter before the Court, Petitioner challenges the calculation and application of his good time credit for 439 days, for the period between June 4, 2000, and August 17, 2001, when he was incarcerated in the Fairfax County Adult Detention Center ("Fairfax County Jail"). ECF No. 1 at 3; ECF No. 9, attach. 1 at 34.

         Petitioner filed a § 2254 Writ of Habeas Corpus with the Trial Court on April 1, 2016, claiming that Petitioner had not been given earned good time credit for 439 days of time as required by Va. Code §§ 53.1-116 and -202.2.[1] ECF No. 9, attach. 1 at 7, 12. On May 27, 2016, the Trial Court dismissed Petitioner's state habeas petition, finding that Petitioner had been appropriately credited with the good time credits he was owed. Id., attach. 1 at 44-45. On July 28, 2016, Petitioner appealed to the Supreme Court of Virginia alleging that the Trial Court erred in denying Petitioner's state habeas petition. Id., attach. 2 at 3-15. Specifically, Petitioner argued that the Trial Court erred by: (1) entertaining Respondent's motion to dismiss the petition and rejecting Petitioner's response to the motion to dismiss; (2) failing to provide Petitioner with the same opportunity given to Respondent in filing their motion to dismiss; and (3) failing to provide an evidentiary hearing. Id., attach. 2 at 6. On March 23, 2017, the Supreme Court of Virginia found that the Trial Court committed no reversible error and refused Petitioner's state habeas petition. Id., attach. 2 at 19.

         Petitioner filed a pro se Section 2254 petition for federal habeas relief in the United States District Court for the Western District of Virginia on October 30, 2017. ECF No. 1. Giving Petitioner the benefit of liberal construction, Petitioner appears to allege a similar claim to that alleged in his state habeas, namely, that he was denied good conduct time. However, Petitioner does not base this denial on a violation of the Virginia Code, but rather couches his instant claim as a due process violation.[2] Id. at 3, 5. Petitioner states that Respondent acted improperly in calculating his good time credit while in Fairfax County Jail under the new 85% law, when it should properly be calculated under prior law. ECF No. 1 at 14. On April 16, 2018, Respondent filed a Rule 5 Answer, Roseboro Notice, Motion to Dismiss, and Memorandum in Support of Motion to Dismiss. ECF Nos. 9-12. Petitioner requested additional time to respond to Respondent's Motion to Dismiss, ECF No. 13, which the Court granted, giving Petitioner until May 22, 2018, to file a response, ECF No. 14. On May 25, 2018, [3] Petitioner filed an opposition to Respondent's Motion to Dismiss. ECF No. 15. Respondent filed no reply and the time for doing so has expired. Thereafter, on November 8, 2018, the United States District Court for the Western District of Virginia found that proper venue exists in the Eastern District of Virginia and transferred Petitioner's case to this Court for resolution. ECF Nos. 16-17. Accordingly, Respondent's Motion to Dismiss, ECF No. 10, is ripe for recommended disposition.

         II. DISCUSSION

         In the instant matter, Petitioner contests the calculation of good time credit for 439 days he served in Fairfax County Jail between June 4, 2000, and August 17, 2001. ECF Nos. 1 at 3 and 11 at 2. Specifically, Petitioner appears to contend that the calculation of his good conduct time amounts to a violation of Petitioner's Fourteenth Amendment due process right. ECF No. 1 at 5. Petitioner further elaborates by stating "the United States Constitution itself does not create a protected liberty interest for prisoners earning good conduct credits. Yet, state laws, as well as the Constitution, can create protected liberty interests under the Fourteenth Amendment." ECF No. 15 at 3. Thus, the Court construes Petitioner's Ground One to be alleging a violation of Petitioner's due process rights.

         A. Statute of Limitations

         Before the Court can consider the merits of a Petitioner's claim it must ensure Petitioner has complied with procedural requirements for federal habeas review. 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 within which a petition must file a petition for writ of habeas corpus by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d) provides:

1. A 1-year period of limitation shall apply to any application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court made retroactively ...

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