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Bailey v. Ebbert

United States District Court, District of Columbia

November 23, 2016

ARI BAILEY, Petitioner,
v.
DAVID EBBERT, etal., Respondents.

          MEMORANDUM OPINION

          RICHARD J. LEON United States District Judge.

         This matter is before the Court on petitioner's "Petition for Writ of Habeas Corpus Pursuant to 28 USC § 1651(a); 28 USC § 2254(a), " ECF No. 1, the United States' Opposition to Petitioner's Pro Se "Petition for Writ of Habeas Corpus Pursuant to 28 USC § 1651(a); 28 USC § 2254(a), " ECF No. 12, and "Petitioner's Reply Pursuant to Rule 5(e) of Rules Governing § 2254 Cases, " ECF No. 26. For the reasons discussed below, the Court will deny the petition as untimely.

         The Court construes the petition as one filed under 28 U.S.C. § 2254, and the sole claim this Court may entertain is Count II, see Pet. ¶ 132, ineffective assistance of appellate counsel, see Williams v. Martinez, 586 F.3d 995, 998-1001 (D.C. Cir. 2009). In relevant part, § 2254 provides:

         An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A federal court does not grant a habeas petition to a state prisoner unless it appears that:

(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

Id. § 2254(b)(1). An individual convicted in and sentenced by the Superior Court of the District of Columbia is considered a state prisoner for purposes of § 2254. See Smith v. United States, No. 00-5181, 2000 WL 1279276, at *1 (D.C. Cir. Aug. 23, 2000) (per curiam).

         "Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA). . . impose[d] ¶ 1-year period of limitation on motions brought under [28 U.S.C. § 2255], " United States v. Saro, 252 F.3d 449, 451 (D.C. Cir. 2001) (citation omitted), and "[c]ourts have generally applied the same analysis to the time limitations in § 2254, " United States v. Cicero, 214 F.3d 199, 203 n.* (D.C. Cir. 2000) (citations omitted). The limitation period for the filing of a petition under § 2254 is set forth in § 2244. See Wright v. Wilson, 930 F.Supp.2d 7, 9 (D.D.C. 2013). It runs from the latter of four possible dates:

(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 ...

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