Kirby v. Clarke

Filing 8

MEMORANDUM OPINION. See OPINION for complete details. Signed by District Judge Robert E. Payne on 05/11/2018. Copy mailed to Petitioner.(ccol, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

jl_

Richmond Division

MAY'
QUINDELL M. KIRBY,

Petitioner,

L

V.

Civil Action No. 3:17CV559

HAROLD W. CLARKE,

Respondent.
MEMORANDUM OPINION

Quindell

brings

this

M. Kirby, a Virginia

petition

pursuant

Petition," ECF No. 1).

to

inmate

28

proceeding pro se,

U.S.C.

§

2254

("§ 2254

Respondent moves to dismiss, inter alia,

on the ground that the one-year statute of limitations governing

federal habeas petitions bars the § 2254 Petition.

Despite

being given Roseboro^ notice, Kirby has not responded.

For the

reasons set forth below, the Motion to Dismiss (ECF No. 4) will
be granted.

I.

A.

PROCEDURAL HISTORY

State Proceedings

On September 6, 2012, Kirby was convicted in the Circuit
Court

for

the

County

of

Chesterfield

("Circuit

Court")

of

second-degree murder and use of a firearm during the commission
of murder.

See Commonwealth v. Kirby, Case Nos. CR12F00213-01,

^ Roseboro v. Garrison, 528 F.2d 309 {4th Cir. 1975)

CR12F00213-02, at 1 (Va. Cir. Ct. Sept. 18, 2012).

On December

13, 2012, Kirby was sentenced to a total of twenty years of
imprisonment.

See Commonwea11h v. Kirby, Case Nos. CR12F00213-

01, CR12F00213-02, at 1 (Va. Cir. Ct. Dec. 27, 2012).

Kirby

appealed.

On March 4, 2015, the Supreme Court of Virginia refused
Kirby's petition for appeal.
at 1 (Va. Mar. 4, 2015).
of Virginia denied

Kirby v. Commonwealth, No. 141442,

On April 24, 2015, the Supreme Court

Kirby's petition for rehearing.

Kirby v.

Commonwealth, No. 141442, at 1 (Va. Apr. 24, 2015).
On April 22, 2016, Kirby filed a petition for a writ of
habeas corpus in the
Habeas

Corpus

at

1,

Circuit Court.
Kirby

v.

Petition for a Writ of

Commonwealth,

(Va. Cir. Ct. filed Apr. 22, 2016).

No.

CL16HC1147-00

On August 5, 2016, the

Circuit Court dismissed Kirby's petition finding that his claims
were

procedurally

defaulted.

Kirby

v.

Commonwealth,

No. CL16HC1147-00, at 2-3 (Va. Cir. Ct. Aug. 5, 2016).

Kirby

did not appeal the denial of his petition for a writ of habeas
corpus to the Supreme Court of Virginia.
B.

On

Federal Habeas Petition

July 20,

Petition in the

2017,

prison

Kirby executed

and

placed

his

§

2254

mail system for transmission to this

Court. {§ 2255 Mot. 61.)^

filed as of this date.
{1988).

The Court deems the § 2254 Petition

See Houston v. Lack, 487 U.S. 266, 276

Kirby asserts that he is entitled to habeas relief

based on the following:
"Due Process-Petitioner, an indigent, was
denied funds necessary to employ an expert

Claim One

witness to counter the prosecution's expert
(or to hire an investigator)."

(§ 2255 Mot.

9.)

"A
fair
trial-motion
objection
jurisdiction and/or venue was denied."

Claim Two

to
(Id.

at 27.)
Claim Three

"Confrontation of witness-the Petitioner was

denied

the

confront

and

against him."
Claim Four

opportunity

to

cross-examine

effectively
the

witness

(Id. at 51.)

"Due
Process-the
prosecution
failed
to
disclose 'Brady' . . . material that was in

the hands of investigating agencies."

(Id.

at 56.)

II.

A.

ANALYSIS

Statute Of Limitations

Respondent contends that the federal statute of limitations

bars

Kirby'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

^ The Court utilizes the pagination assigned by the CM/ECF
docketing system to Kirby's § 2254 Petition.

The Court notes

that Kirby has interspersed many pages of correspondence and
state court submissions

with

his § 2254

Petition.

The

Court

corrects the spelling and capitalization, and omits the emphasis
in the quotations from Kirby's submissions.

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 presented could
have
been
discovered
through
the
exercise of due diligence.

2.

The
time
during
which
a
properly
filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward

any

period

of

limitation

under

this

subsection.

28 U.S.C. § 2244{d).

B.

Conuaencement And Running Of The Statute Of Limitations

Kirby's judgment became final on Thursday, July 23, 2015,
when

the

expired.

time

to file

a petition for a

writ

of

certiorari

See Hill v. Braxton, 277 F.3d 701, 704 {4th Cir. 2002)

("[T]he one-year limitation period begins running when direct
review of the state conviction is completed or when the time for

seeking direct review has expired . . .
§ 2244(d)(1)(A)));

(citing 28 U.S.C.

Sup. Ct. R. 13(1} (requiring that a petition

for certiorari be filed within ninety days of entry of judgment
by

state

court

of

last

resort

or

of

the

order

denying

discretionary review).

The statute of limitations began running on July 24, 2015.

Two hundred and

seventy-three

days of the limitation period

expired before Kirby filed his state petition for a writ of
habeas corpus on April 22, 2016.

The

statute

See 28 U.S.C. § 2244(d)(2).

of limitations began running again on August 6,

2016, the day after the Circuit Court dismissed Kirby's petition

for a writ of habeas corpus.

Three hundred and forty-eight

additional days elapsed before Kirby filed his federal habeas

petition on July 20, 2017.

Thus, the limitations period ran for

a total of six hundred and twenty-one days before Kirby filed
his § 2254 Petition.

Therefore, the statute of limitation bars

Kirby's § 2254 Petition.
C.

Belated Cominencement Under 28 U.S.C. § 2244(d)(1)(D)

Although
Petition

Kirby offers no reason

should

be

subject

to

as

belated

to

why his § 2254

commencement

of

the

limitation period or equitable tolling (see § 2254 Pet. 60),
because Kirby raises a claim pursuant to Brady v. Maryland, 373

U.S. 83 (1963), the Court construes Kirby to allege that he is
entitled

to

belated

commencement

pursuant

to

28

U.S.C.

§ 2244(d)(1)(D) for Claim Four.

Under § 2244(d)(1)(D), the limitation period begins to run

when the petitioner knows, or through due diligence could have
discovered, the factual predicate for a potential claim.

See

Schlueter v. Varner, 384 F.3d 69, 74 (3rd Cir. 2004); Owens v.

Boyd, 235

F.3d 356, 359 (7th Cir.

2000).

"[T] he petitioner

bears the burden of proving that he exercised due diligence, in
order for the statute of limitations to begin running from the
date he discovered the factual predicate of his claim, pursuant
to 28 U.S.C. § 2244(d)(1)(D)."

DiCenzi v. Rose, 452 F.3d 465,

471 (6th Cir. 2006) (citing Lott v. Coyle, 261 F.3d 594, 605-06
(6th Cir. 2001)).

A habeas applicant who "merely alleges that

[he or she] did not actually know the facts underlying his or
her claim does not" thereby demonstrate due diligence.
Boshears,

110

obtain

belated

a

F.3d

1538,

1540

commencement

(11th

of

Cir.

the

1997).

limitation

In re

Rather,

period,

to

the

applicant must explain why a reasonable investigation would not
have

unearthed

limitation

the

period

facts

prior

commenced

to

under

See id. at 1540-41 (rejecting

the

28

date

U.S.C.

under

§

which

the

2244(d)(1)(A).

petitioner's assertion that he

could not have discovered his new Brady claim prior to filing
his first § 2254 petition).

In Claim Four, Kirby asserts that "the prosecution failed
to disclose 'Brady' . . . material that was in the hands of

investigating agencies."

{§ 2254 Pet. 55.)

Kirby states that,

[as e]xplained by Amy Knight of Chesterfield County
Police,
forensic
investigator,
the
victim
Peter
Ambrister was fully clothed.
But as you can see on
. . .

the

Commonwealth's

Exhibits

the

victim's

shirt

was not released as evidence.
Only a pair of blue
jeans, a buccal swab and a DNA card was sent to the
lab for testing as well.
Ms. Knight was asked by

defendant's attorney Todd Ritter "So I take it then
there was not fingerprint analysis done?"
answered: "No, sir. I didn't see it."

Ms. Knight

(Id. at 55-56 (internal citations omitted).)

The Court construes Kirby to allege that the victim's shirt

was withheld from Kirby's defense.^

Therefore, to qualify for

^ Kirby cites to the trial transcript and seems to indicate
that Forensic Investigator Amy Knight testified that she did not
believe fingerprint analysis had been performed on the victim's
t-shirt.

However, the record reflects that when the exchange

referenced by Kirby occurred at trial, Ms. Knight actually
testified that fingerprint analysis had not been performed on
shell casings recovered at the scene.
(See Sept. 5, 2012 Tr.
126.)

It

is

unclear

from

Kirby's

§

2254

Petition

why

the

victim's t-shirt would be considered Brady material.
See Monroe
V. Angelone, 323 F.3d 286, 299-300 (4th Cir. 2003) (explaining
that the three elements of a Brady claim are "(1) the evidence
must be favorable to the accused; (2) it must have been
suppressed by the government, either willfully or inadvertently;

and (3) the suppression must have been material." (citation
omitted)).
It appears that despite the victim being fully
clothed at the scene of the crime, his t-shirt was
to the Virginia Department of Forensic Science
although
his
jeans
were.
See
Certificate
Commonwealth v. Kirby, No. CL16HC1147-00 (Va. Cir.

not submitted
for analysis
of
Analysis,
Ct. filed May

1, 2012).
In his § 2254 Petition, Kirby does not clearly
explain why the t-shirt would be favorable to his defense.
Instead, Kirby appears to argue that because the t-shirt, unlike
the victim's jeans, was not submitted to the Virginia Department

belated commencement under 28 U.S.C. § 2244(d)(1)(D), Kirby must
demonstrate

that

a

reasonable

investigation

would

not

have

unearthed the victim's shirt until after his conviction became

final on July 23, 2015.

This he fails to do.

As made clear by

the facts stated in Kirby's § 2254 Petition and confirmed by the
record,

Kirby

was

"fully clothed."

aware

at

trial

that

the

(See Sept. 5, 2012 Tr. 95.)

victim

was

found

Therefore, Kirby

was aware at his trial on September 5, 2012, at the latest, of

the facts underlying his Brady claim.
does

not

qualify

for

belated

Accordingly, Claim Four

commencement

under

U.S.C.

§ 2244(d)(1)(D) and is barred by the statute of limitations.'*

III. CONCLUSION

Accordingly,
will be granted.

Respondent's

Motion

to

Dismiss

(ECF

No.

4)

The § 2254 Petition will be denied and the

action will be dismissed.

An appeal may not be taken from the final order in a § 2254

proceeding unless a judge issues a certificate of appealability
of Forensic Science for analysis, this indicates there was a
break in the chain of custody and that the evidence was tampered
with or contaminated.
(See § 2254 Pet. 56-57.)
Nonetheless,
because Kirby explicitly brings Claim Four pursuant to Brady,
the Court will consider the argument that he is entitled to
belated
commencement
of
the
limitation
period
under
§ 2244(d)(1)(D).

* Kirby fails to suggest any other basis for a belated
commencement
of
the
limitation
period
under
28
U.S.C.
§ 2244(d)(1)(B)-(C), or for equitable tolling. (See § 2254 Pet.
60.)

("COA").

28 U.S.C. § 2253(c)(1)(A).

A COA will not issue

unless a prisoner makes «a substantial showing of the denial of
a

constitutional

right."

28

U.S.C.

§ 2253(c)(2).

This

requirement is satisfied only when "reasonable jurists could

debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the

issues presented were 'adequate to deserve encouragement to
proceed further.'"

Slack v. McDaniel. 529 U.S. 473, 484 (2000)

(quoting Barefoot v. Estelle. 463 U.S. 880, 893 & n.4 (1983)).
No law or evidence suggests that Kirby is entitled to further
consideration in this matter.

A COA will therefore be denied.

The Clerk of the Court is directed to send a copy of this
Memorandum Opinion to Kirby and counsel of record.

/s/

Robert E. Payne

Senior Ikiited States District Jvidge
Richmond, Virginia

Xw t)