United States District Court, E.D. Virginia, Alexandria Division
T. S. ELLIS, III, District Judge.
Willie James Suite, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction of drug offenses in the Portsmouth Circuit Court. Petitioner has paid the statutory filing fee. By Order dated October 29, 2014, petitioner was informed that this petition appeared to have been filed untimely, and he was allowed thirty (30) days within which to show cause why the petition should not be barred by the statute of limitations. Petitioner has filed a reply. After careful consideration, this petition must be dismissed, as time-barred.
On October 18, 2010, petitioner entered a conditional plea of guilty to charges of possession of heroin, possession of cocaine, and probation violation in the Circuit Court for the City of Portsmouth. He was sentenced on June 30, 2010 to serve a total of five (5)years incarceration. Pet. at 1. Petitioner filed a direct appeal in the Virginia Court of Appeals, which denied his petition for appeal in March, 2012. Pet. at 2. Petitioner the nappealed to the Supreme Court of Virginia, which refused his appeal on July 19, 2012. Id . Therefore, petitioner's conviction became final on October 17, 2012, the last date he could have petitioned the Supreme Court of the United States for a writ of certiorari.
In response to the Order of October 29, 2014, petitioner has supplied copies of documents pertaining to two petitions for state habeas corpus relief In October, 2012, Suite filed a petition for a writ of habeas corpus in the Circuit Court for the City of Chesapeake. Suite v. Clarke, case number CL12-2448; Dkt. 4, Att. p. 1. By Final Order dated July 18, 2014, the petition was dismissed and the matter was stricken from the court's docket on the following holding:
Petitioner raises numerous allegations that he was denied his constitutional rights in connection with his trial and convictions in Portsmouth Circuit Court that preceded this Court's judgment in Case No. CR11-775, revoking sentences previously suspended in Case Nos. CR98-2217, CR00-3147 and CR03-1502. The Court has determined that all of petitioner's allegations pertain to the proceedings in Portsmouth Circuit Court. Virginia Code § 8.01-654(B)(1) expressly provides, only the circuit court which entered the original judgment order of conviction or convictions complained of in the petition shall have authority to issue writs of habeas corpus.' Thus, pursuant to Virginia Code § 8.01-654(B)(1), thus [sic] Court has no authority to grant petitioner relief upon grounds that arose in the Circuit Court of the City of Portsmouth.
Dkt. 4, Att. pp. 3-3A.
In June, 2014, Suite also filed a petition for a writ of habeas corpus in the Circuit Court of the City of Portsmouth. Suite v. Clarke, case number 14-1917; Dkt.4, Att. p. 2. That petition was denied and dismissed by Final Order dated August 13, 2014, which held:
Upon mature consideration of the petition for a writ of habeas corpus filed herein, and the motion to dismiss filed by the respondent, the Court finds that the petition is barred by the statute of limitations as to both petitioner's criminal convictions in Case Nos. CR100000512-01 and -02 and as to his probation revocation in Case No. CR05A-573. Virginia Code § 8.01-654(A)(2); footer V. Dir., Dept. of Corr., 284 Va. 6, 7272 S.E.2d 650 (2012).
Dkt. 4, Att. p. 4.
Suite then turned to the federal forum and filed this petition for relief pursuant to § 2254 on September 22, 2014.
Pursuant to 28 U.S.C. § 2244(d), a petition for a writ of habeas corpus must be dismissed if filed later than one year after (1) the judgment becomes final; (2) any state-created impediment to filing a petition is removed; (3) the United States Supreme Court recognizes the constitutional right asserted; or (4) the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(l)(A)-(D). In this case, petitioner's judgment of conviction became final on October 17, 2012, so the limitations clock began to run on that date.
In calculating the one-year limitations period, the Court must exclude the time during which properly-filed state collateral proceeding spursued by petitioner were pending. See 28 U.S.C. § 2244(d)(2); The definition of "properly filed" in this context is based on applicable state law as interpreted by state courts. Pace v. DiGuglielmo, 544 U.S. 408 (2005). Accordingly, neither of Suite's state habeas corpus applications was "properly filed." The Circuit Court for the City of Chesapeake dismissed the petition Suite filed there on the ground that it lacked jurisdiction pursuant to Virginia Code § 8.01-654(B)(1) to grant relief as to a conviction entered in another circuit, and the Circuit Court for the City of Portsmouth determined that the claims before it were barred by the statute of limitations set out in Virginia Code § 8.01-654(A)(2). Thus, neither of those petitions was "properly filed, " and neither acted to toll the limitations period. See Artuzv. Bennett, 531 U.S. 4, 8 (2000) (holding that a state collateral proceeding is not "properly filed" for purposes of tolling the federal ...