United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI, District Judge.
The petitioner, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on his 2005 Roanoke City Circuit Court convictions for forcible sodomy and aggravated sexual assault. After review of the record, the court concludes that although the petition was not timely filed under § 2244(d), statutory tolling under 28 U.S.C. § 2244(d)(1)(D) and equitable tolling are warranted as to his claim that his attorney provided ineffective assistance during belated appeal proceedings ("Claim 1"); the petitioner has shown cause and prejudice for his procedural default of Claim 1; and he is entitled to file a belated petition for appeal from the criminal judgment. In light of these conclusions, the court will deny the respondent's motion to dismiss, grant relief under § 2254 as to Claim 1 to the limited extent of ordering that the petitioner be allowed to file a belated petition for appeal from the criminal judgment, and dismiss the petitioner's remaining habeas claims without prejudice.
Timothy Preston Elder ("Elder") pleaded guilty in the Roanoke City Circuit Court to two counts forcibly sodomizing a boy under the age of thirteen and two counts of aggravated sexual battery of the same victim. (Case Nos. CR04001632 and CR5000081). At sentencing, the trial judge departed upward from the advisory state sentencing guidelines and sentenced Elder to forty years in prison, consisting of consecutive ten-year terms on each of three counts and to a consecutive life sentence on the fourth count, suspended after Elder has served ten years on that count. The Court entered judgment on May 10, 2005. Trial counsel moved unsuccessfully for reconsideration of the sentence. No appeal was filed.
Elder and his wife ("Mrs. Elder") retained Attorney Paul Dull ("Dull") in early 2006 to file a petition for a writ of habeas corpus on Elder's behalf and a belated criminal appeal, if the circuit court granted one. Dull filed a timely petition for a writ of habeas corpus on Elder's behalf in the Roanoke City Circuit Court in May 2006, alleging that Elder's trial attorney had provided ineffective assistance in various respects, including failure to file a notice of appeal after Elder asked her to do so (Claim 1). (Case No. CL06000886-00.) The respondent's motion to dismiss remained pending for four years. During this period, Dull allegedly did not correspond much with Elder and often would not reply to emails or calls from Mrs. Elder.
The parties had stipulated that the Court could decide the case based on the affidavit of the trial attorney. The Court declined to do so, however, and conducted an evidentiary hearing on August 26, 2010, on Claim 1. The Court ruled on June 7, 2011, that Elder had established his entitlement to a belated appeal from his 2005 criminal judgment and entered an order directing counsel for the respondent to move the Court of Appeals for a belated appeal. In a separate opinion and order dated June 7, 2011, the Court dismissed Elder's remaining habeas claims with prejudice, based on the Court's finding that he had failed to establish any ground for relief. Elder did not appeal the dismissal of these habeas claims.
The Court of Appeals of Virginia, by order entered July 12, 2011, granted Elder a belated appeal. (Record No. 1611-11-3.) This order states that "all computations of time as required by the Rules of Court and applicable statutes" would commence on that date. Dull timely filed a notice of appeal in which he referred to himself as Elder's retained counsel. On November 14, 2011, Dull moved for and was granted an extension of time until November 24, 2011 to file Elder's petition for appeal. Dull never filed the petition for appeal. Consequently, by order dated December 8, 2011, the Court of Appeals of Virginia dismissed Elder's appeal for failure to file the petition for appeal within the prescribed time. The state court records do not indicate that Dull, at any time, moved to withdraw as Elder's counsel of record. Although Dull remained counsel of record for Elder at the time the appeal was dismissed, Elder states that Dull did not notify him in a timely manner of that dismissal.
Elder states that he wrote to Dull to inquire about the appeal, but received no response, and that Mrs. Elder, too, tried several times to contact Dull. She told Elder that if Dull responded to her at all, "it usually was a conversation about needing more funds." (Response 7, ECF No. 22.) Elder does not document the dates on which he and Mrs. Elder attempted to contact Dull about the appeal.
In March 2012, Dull emailed Mrs. Elder, saying that he no longer represented Elder and that the appeal had been denied. Elder filed a bar complaint against Dull in April 2012 with the Virginia State Bar ("VSB"). Elder also wrote to Dull, and his sister called the attorney repeatedly in May 2012, asking for Dull's file on Elder's case, but they received no response. Elder finally received his file from Dull in late September 2012. Elder asserts that only then, in reviewing items in the file, did he discover the Court of Appeals of Virginia order stating that the belated appeal was dismissed because Dull never filed the petition for appeal.
Based on this new information, in October 2012, Elder filed a second complaint against Dull with the VSB. After investigation of Elder's complaint and complaints from several other clients, the VSB issued a public reprimand against Dull in June 2014. The reprimand includes the following stipulations of fact, relevant to Elder's current claim:
Elder's trial attorney did not file an appeal [of Elder's 2005 criminal judgment] barring Elder's ability to appeal his conviction. Elder's wife hired [Dull] to file a habeas corpus petition to seek a delayed appeal [and made] an initial payment of $2, 500.00 to perform the work.... [Dull] successfully obtained the relief of a delayed appeal [but] never filed the appeal. Elder's wife alleges that after the trial court granted the delayed appeal, [Dull] stopped communicating with her. [Dull] stated that he did not file the appeal because of alleged non-payment by Elder.
(VSB Doc. 3, ECF No. 27) (paragraph numbers omitted.)
On April 30, 2013, Elder signed and dated a pro se petition for a writ of habeas corpus in the Supreme Court of Virginia, received by the court on May 2, 2013. Elder's sole claim alleged that Dull's failure to file the petition for appeal was ineffective assistance warranting a second belated appeal. (Record No. 130729.) That Court dismissed the petition on June 14, 2013, finding that it was time barred. See Va. Code Ann. § 8.01-654(A)(2). Elder also filed a motion in the Supreme Court of Virginia on July 9, 2013, requesting a second belated appeal. The Court denied this motion by order dated August 1, 2013.
Elder signed and dated his pro se federal habeas petition on October 15, 2013, and states under penalty of perjury that he placed the petition in the prison mailing system on that date. As his grounds for relief, Elder states that, based on the facts the court has just summarized, his trial counsel, as well as his "retained" counsel (Dull), had provided ineffective assistance. Elder does not clearly state the particular claims that he intends to pursue regarding alleged ineffectiveness by either of his attorneys. Liberally construing his pleadings, however, the court will presume that Elder raises here the same claims he raised about his trial attorney in his first state habeas petition, absent the claims ...