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Potter v. Booker

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

August 29, 2019

DAVID A. POTTER, Petitioner,
v.
BERNARD W. BOOKER, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young United States Magistrate Judge.

         David 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.

         I. PERTINENT PROCEDURAL HISTORY

         On July 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).)

         On May 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.)

         The 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.)

         On September 19, 2018, Potter filed his § 2254 Petition with this Court.[1] In his § 2254 Petition, Potter contends that he is entitled to relief upon the following grounds:[2]

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.)

         II. ANALYSIS

         A. Statute of Limitations

         Respondent 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 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 ...

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