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Pullen v. Director, Va Dept. of Corr.

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

January 13, 2015


David Linwood Pullen, Pro Se Petitioner.

Christopher P. Schandevel, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Respondent.


JAMES P. JONES, District Judge.

David Linwood Pullen, a Virginia inmate proceeding pro se, filed this action as a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Upon review of the record, I conclude that the respondent's Motion to Dismiss must be granted.


Pullen stood trial before a jury in the Circuit Court of Rappahannock County, Virginia, and was convicted of first degree murder, possession of a firearm after having been convicted of a felony, and use of a firearm while committing murder. In addition, Pullen pleaded guilty to a second count of possession of a firearm after having been convicted of a felony. The court sentenced Pullen to a total of 33 years imprisonment with the Virginia Department of Corrections, with five years suspended, and an additional six months in jail. Pullen sought an appeal to the Court of Appeals of Virginia, which denied his petition. The Supreme Court of Virginia thereafter refused Pullen's petition for appeal and on March 8, 2013, denied his petition for rehearing. Pullen did not pursue certiorari review in the Supreme Court of the United States nor did he file a state habeas petition.

On April 22, 2014, Pullen delivered his federal habeas petition to the prison mailroom for mailing to the court.[1] The petition asserts that Pullen's trial counsel was ineffective by failing to: (a) adequately question Robert Alcock about Pullen's fear of the victim, Wayne Jenkins; (b) call Clyde Pullen and Kathy Pullen as witnesses; and (c) request a jury instruction as to second-degree murder. The respondent has moved to dismiss Pullen's claims as procedurally defaulted because he did not pursue available state court remedies and would now be barred under state law from doing so. Pullen has responded, making the matter ripe for disposition.


Absent a valid excuse, a state prisoner must exhaust his remedies in state court before seeking habeas corpus relief in federal court. 28 U.S.C. § 2254(b). As stated, Pullen failed to submit his ineffective assistance claim to any state court before filing his federal petition. Under these circumstances, even though the claim has not been fairly presented to the Supreme Court of Virginia, the exhaustion requirement is "technically met, " because "a state procedural rule would bar consideration" of the claim now. Hedrick v. True, 443 F.3d 342, 364 (4th Cir. 2006). Specifically, if Pullen now returned to state court to pursue his habeas claims, they would be time barred under Virginia Code § 8.01-654(A)(2), which requires that habeas claims be filed within one year from the "final disposition of the direct appeal in state court."

Pullen's direct appeals in the state courts concluded when the Supreme Court of Virginia refused his petition for rehearing on March 8, 2013. Under section 8.01-654(A)(2), he then had until March 10, 2014, to seek state habeas relief. Pullen failed to file his state habeas claims within this period, and Virginia law would now bar review of those claims as untimely. I find that the application of the state time bar would be an independent and adequate state-law ground for disposition of Pullen's claims. See, e.g., Speller v. Johnson, No. 3:09CV463, 2012 WL 1038624, at *7 (E.D. Va. Mar. 27, 2012) (finding that state court application of § 8.01-654(A)(2) barred federal habeas review and citing other cases). Thus, federal review of Pullen's defaulted claims is also barred, "unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice."[2] McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

"[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him." Coleman, 501 U.S. at 753 (emphasis in original). Generally, a showing of cause rests on "some objective factor external to the defense [which] impeded [a petitioner's] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986).

Pullen asserts that library access problems should serve as cause for his default. Even taking the evidence in the light most favorable to Pullen, I find no merit to his argument.

As stated, Pullen's deadline to file a timely state petition expired on March 8, 2014, while Pullen was incarcerated at Sussex II State Prison. During the preceding week, he anticipated completing and submitting his state habeas petition. On March 3, 2014, however, the prison went on lockdown and remained in that status for a month, with library access allowed only upon request related to a court deadline.[3] Pullen claims that on March 4, he submitted a request to use the law library, but never received a response and was not allowed access to the law library before his state habeas time limit expired on March 8. Because Virginia Code § 8.01-654(A)(2) does not include any tolling provisions, Pullen believed that filing a state petition would be futile and proceeded to file this federal habeas petition instead.

At the most, the prison lockdown impeded Pullen's habeas litigation efforts for the last week of his one-year filing period. Pullen does not point to any external factor that prevented him from preparing a timely state habeas petition within the eleven months preceding the prison lockdown. As he provides no basis for finding that this lengthy delay was not attributable to him, I cannot find that his evidence of temporary library problems in the week before ...

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