United States District Court, E.D. Virginia, Richmond Division
DAVID A. POTTER, Petitioner,
BERNARD W. BOOKER, Respondent.
Roderick C. Young United States Magistrate Judge.
A. Potter, a Virginia state prisoner proceeding pro
se, brings this petition pursuant to 28 U.S.C.
§ 2254 ("§ 2254 Petition," ECF No. 1).
Potter challenges his 1976 conviction for armed robbery in
the Circuit Court for the City of Hopewell ("Circuit
Court"). (Id. at 1.) Respondent moves to
dismiss on the ground that the one-year statute of
limitations governing federal habeas petitions bars the
§ 2254 Petition. Potter has responded with a Motion to
Add Case Record. (ECF No. 17.) For the reasons set forth
below, the Motion to Dismiss (ECF No. 13) will be GRANTED.
PERTINENT PROCEDURAL HISTORY
11, 1974, Potter committed three robberies in Florida. (ECF
1-2, at 1.) On January 31, 1975, the Florida trial court
sentenced Potter to prison "for the remainder of [his]
natural life." (Id. (alteration in original).)
3, 1976, Potter was convicted in the Circuit Court of armed
robbery and sentenced to 35 years of imprisonment. (ECF No.
15-1, at 1.) Potter appealed. On April 27, 1977, the Supreme
Court of Virginia refused to entertain Potter's appeal.
(§ 2254 Pet. 2.)
Virginia Department of Corrections ("VDOC") sent
the Florida authorities a detainer with respect to the above
Virginia conviction. (ECF No. 15-1, at 1.) On April 9, 2018,
the Florida authorities informed the VDOC Detainer Unit that
the Florida life sentence "had been overturned and
modified and that Potter was in its custody on the Virginia
sentence. The ["VDOC"] was given 10 days to assume
custody of Potter." (Id.) On April 19, 2018,
Potter began to serve his Virginia sentence. (Id. at
2.) Potter is eligible for parole on the Virginia sentence as
of January 16, 2026. (Id.)
September 19, 2018, Potter filed his § 2254 Petition
with this Court. In his § 2254 Petition, Potter
contends that he is entitled to relief upon the following
Claim One "Imposition of my 35-year sentence at 61 years
old is a 5th Amendment 'continuing injury'
due process violation." (§ 2254 Pet. 5.)
Claim Two "Imposition of my 35-year sentence at 61 years
old is a violation of the 8thAmendment ban on
cruel and unusual punishment." (Id. at 7.)
Statute of Limitations
contends that the federal statute of limitations bars
Potter'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 ...