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Belcher v. Commonwealth

United States District Court, W.D. Virginia, Roanoke Division

February 11, 2014

ANTHONY LEE BELCHER, Petitioner,
v.
COMMONWEALTH OF VIRGINIA, Respondent.

MEMORANDUM OPINION

JAMES C. TURK, Sr., District Judge.

Anthony Lee Belcher, a federal inmate proceeding pro se, brings this action as a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The court construes his petition as challenging the validity of his 1993 Virginia conviction for arson, based on allegations that Virginia authorities breached the plea agreement by failing to ensure concurrent credit against his federal sentence.[1] Upon review of the record, the court summarily dismisses the petition as untimely filed.

I

Belcher states that he was convicted in the Washington County Circuit Court, pursuant to a written plea agreement, on a charge of arson. Records also indicate that Belcher pleaded guilty in this court on June 29, 1993, to possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). See United States v. Belcher, Case No. 1:92CR00051. Belcher claims that on August 11, 1993, according to the terms of his state plea agreement, the Circuit Court sentenced him to a term of 20 years in prison, with 15 years suspended, with the state sentence to run concurrent to the not-yet imposed federal sentence. Belcher did not appeal this state court judgment. On August 23, 1993, this court entered judgment, sentencing Belcher to 180 months in prison for his federal conviction.

The federal sentencing order is silent as to its relationship to Belcher's state sentence. After this court imposed sentence, federal authorities returned Belcher to state officials, and he was ultimately transported to a state prison facility to serve his state sentence. Federal court records available online indicate that Belcher was released on parole from his state sentence on August 1, 2005.[2] Federal officials then took custody of him, and he began serving his federal sentence. The Federal Bureau of Prisons ("BOP") calculated Belcher's federal sentence as commencing on the date of his state parole release on August 1, 2005, and did not credit the time served in state prison against his federal sentence.

Belcher then began a campaign to obtain credit against his federal sentence for his state prison time. His submissions indicate that on February 8, 2008, and twice since then, the BOP has denied his administrative request for a "nunc pro tunc designation" so as to allow him the desired credit against his federal sentence. In December of 2010, Belcher filed his § 2241 petition in federal court in Tennessee, seeking sentence credit. That petition was denied on May 23, 2011, and his 2013 motion for reconsideration was denied on January 28, 2014. Belcher also filed motions in this court, unsuccessfully seeking federal sentence credit.

On February 14, 2013, Belcher returned to the Washington County Circuit Court. In his original criminal case, No. 92-193, he filed a "Motion to Correct the Impairment of the Contractual Obligation Plea Agreement, " demanding specific performance of the plea agreement to obtain concurrent credit on his state and federal sentences. After the Circuit Court denied the motion, Belcher appealed to the Supreme Court of Virginia, which denied relief on June 5, 2013.[3]

Belcher signed and dated his § 2254 petition on October 28, 2013. The court filed the petition on the condition that he pay or consent to payment of the $5.00 filing fee and provide information concerning the timeliness of his petition under 28 U.S.C. § 2244(d). When the court did not receive any response from Belcher within the allotted time, by order entered November 25, 2013, the court dismissed the petition without prejudice. On November 27, 2013, the court received Belcher's response and consent to the filing fee, signed and dated on November 8, 2013. Stamps on the envelope indicated that Belcher timely mailed his consent and response, but used the court's former, post office box address, which delayed the court's receipt of the mailing.

By order entered December 10, 2013, the court reopened the § 2254 case. Belcher's original response concerning the timeliness of his petition failed to provide specific information about when he learned the facts necessary to bring his current habeas claim. Accordingly, the court directed him to provide within ten days any additional information concerning "how and when [he] learned that he had not received any credit against his federal sentence for time served on his concurrent state sentence; when and how he tried to verify that he would receive credit; and why he could not have discovered the sentence credit problem earlier." (Order 2, Dec. 10, 2013.) Belcher then filed additional information on timeliness, detailing his efforts to obtain concurrent sentence credit.

In his § 2254 petition, Belcher asserts that state officials breached his 1993 plea agreement by failing to ensure that his state sentence actually did run concurrent with his federal sentence. As a result of this failing, Belcher did not receive any credit against his federal sentence for time served on the state sentence. He asserts that he remains in custody on his state court sentence, for which his parole was revoked, and he now seeks habeas corpus relief from his state conviction on the ground that his guilty plea was not valid.

II

A person seeking to bring a habeas corpus challenge to the validity of his confinement under a state court judgment has one year to file such a petition, starting from the latest of the following 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 ...

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