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Grimsley v. Clarke

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

November 20, 2019

KENNETH HANES GRIMSLEY, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young United States Magistrate Judge.

         Kenneth Hanes Grimsley, 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 for Fairfax County, Virginia ("Circuit Court"). Respondent moves to dismiss, arguing that Grimsley's § 2254 Petition is barred by the statute of limitations. (ECF No. 13.) Despite the provision of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notice and the Court's grant of an extension of time to Grimsley, Grimsley failed to respond. For the reasons that follow, the § 2254 Petition will be DENIED.

         A. PROCEDURAL HISTORY

         On February 17, 2005, pursuant to an Afford[1] plea, Grimsley was convicted of two counts of robbery and one count of use of a firearm in the commission of a felony and was sentenced by the Circuit Court to an active term of incarceration of twenty years. (ECF No. 15-1, at 1-2.)[2]Grimsley filed no appeal. On March 16, 2005, Grimsley filed a Motion to Reconsider his sentence. (Id. at 28.) The Circuit Court denied the Motion to Reconsider on March 29, 2005.[3]Commonwealth v. Grimsley, No. 106396, at 1 (Va. Cir. Ct. Mar. 29, 2005).

         On February 13, 2007, Grimsley filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. (ECF No. 15-2, at 1.) On July 3, 2007, the Supreme Court of Virginia dismissed the petition. (ECF No. 15-3, at 1-6.)

         On November 14, 2016, Grimsley filed a second petition for writ of habeas corpus in the Circuit Court. (See ECF No. 15-4, at 3.) On February 1, 2017, the Circuit Court dismissed the petition, inter alia, as barred by the Virginia statute of limitations. (Id. at 3, 7 (citing Va. Code Ann. § 8.01-654(A)(2))). Grimsley appealed, and the Supreme Court of Virginia refused his petition for appeal on February 23, 2018. (ECF No. 15-5, at 1.)

         On May 9, 2018, Grimsley filed his § 2254 Petition. (ECF No. 1, at 16.)[4] In his § 2254 Petition, Grimsley argues he entitled to relief on the following claim:

Claim One: "Petitioner's sentence [is] above discretionary guidelines." (Id. at 5.)[5]

         II. STATUTE OF LIMITATIONS

         Respondent contends that the federal statute of limitations bars Grimsley's claim. 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 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 and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims ...

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