United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young, United States Magistrate Judge
Derrell Corbett, a Virginia state prisoner proceeding pro
se, brings this petition pursuant to 28 U.S.C. §
2254 ("§ 2254 Petition," ECF No. 1)
challenging his convictions in the Circuit Court of the
County of Henrico, Virginia ("Circuit Court").
Respondent moves to dismiss, inter alia, on the
ground that the one-year statute of limitations governing
federal habeas petitions bars the § 2254 Petition.
Corbett filed a Response. (ECF No. 19.) For the reasons set forth
below, the Motion to Dismiss (ECF No. 15) will be GRANTED.
was originally charged with one count of malicious wounding
and one count of possession of a firearm by a violent
convicted felon. (ECF No. 16-1, at 14-15.) Pursuant to a Plea
Agreement between Corbett and the Commonwealth, the
Indictment for the malicious wounding charge was
"amended to attempted robbery with a gun."
(Id. at 17); see Plea Agreement,
Commonwealth v. Corbett, Nos. CR16-2368-F,
CR16-2369-F (Va. Cir. Ct. filed Oct. 27, 2016). Corbett was
then arraigned on the attempted robbery charge and the
possession of a firearm by a violent convicted felon charge.
(Oct. 27, 2016 Tr. 5-6). Corbett pled guilty to both charges.
(ECF No. 16-1, at 17.) On November 9, 2016, the Circuit Court
sentenced Corbett to a total active sentence of eight years
of incarceration. (Id. at 18-19.) Corbett did not
January 11, 2018, Corbett filed a petition for a writ of
habeas corpus in the Supreme Court of Virginia. (Id.
at 1.) On July 3, 2018, the Supreme Court of Virginia
dismissed the petition. (ECF No. 16-2, at 1.)
September 14, 2018, Corbett filed the instant § 2254
Petition. In his § 2254 Petition, Corbett
asserts the following claims for relief:
Claim One: "[Corbett] was denied equal protection under
the Due Process Clause of the Fourteenth Amendment in that he
had a state-created liberty interest that an amended
Indictment cannot encompass a change in the nature and
character [of the offense] from the original Indictment . . .
." (§ 2254 Pet. 5.)
Claim Two: Trial counsel rendered ineffective assistance (a)
"when [counsel] failed to object to the amendment of
[the] Indictment, which changed the nature and character of
the offense charged" (id. at 7), and (b)
because counsel "[f]ailed to advise [Corbett] that
'legal impossibility' is a defense to the charge of
'attempted] [robbery]....'" (Id.)
Statute of Limitations
contends that the federal statute of limitations bars
Corbett's claims. 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 for the filing of a petition for a writ of habeas
corpus by a person in custody pursuant to the judgment of a
state court. Specifically, 28 U.S.C. § 2244(d) now
1. A 1-year period of limitation shall apply to an
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 the 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