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Corbett v. Clarke

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

June 21, 2019

ANTHONY DERRELL CORBETT, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young, United States Magistrate Judge

         Anthony 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.[1] (ECF No. 19.) For the reasons set forth below, the Motion to Dismiss (ECF No. 15) will be GRANTED.

         I. PROCEDURAL HISTORY

         Corbett 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 appeal.

         On 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.)

         On September 14, 2018, Corbett filed the instant § 2254 Petition.[2] In his § 2254 Petition, Corbett asserts the following claims for relief:[3]

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.)

         II. ANALYSIS

         A. Statute of Limitations

         Respondent 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 reads:

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 ...

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