United States District Court, E.D. Virginia, Alexandria Division
Mushaune X. Stevenson, Petitioner,
Warden Carl Manis, Respondent.
T.S. ELLIS, III, District Judge.
Mushaune X. Stevenson, a Virginia inmateproceeding pro se, has filed a petition for a writ ofhabeas corpus pursuant to 28 U.S.C. § 2254, challengingthe constitutionalityof his conviction ofdrug offenses entered on a plea ofguilty in the Circuit Court for the City of Richmond. On June 5, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunityto file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and after receiving an extension oftime petitioner submitted a Rebuttal to Motion to Dismiss on July 15, 2014. For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed with prejudice.
At a hearing on February 22, 2011, petitioner entered a negotiated plea of guilty to one count ofdistribution ofcocaine and two counts ofpossession ofheroin with intent to distribute. Four additional drug charges were nolleprosequi, T. 2/22/11 at 13, and it also was agreed that petitioner would not be prosecuted for an outstandingprobation violation. Id. at 14. Petitioner received an aggregate sentence of thirty(30)yearsin prison withtwenty-one (21) years suspended. Id. at 11-12. Finaljudgment was entered on May 26, 2011.
On February22, 2011, the same day he entered his guilty plea, petitioner filed a motion to modify his sentence pursuant to Va.Code § 19.2-303, as well as a motionto stayhis transportation to the VirginiaDepartment ofCorrections ("VDOC"). Pursuantto § 19.2-303, a Virginia trial court retainsjurisdiction in a felony criminal case so long as the defendant has not been transported to VDOC. Neelv v. Commonwealth, 44 Va.App. 239, 243-44, 604 S.E.2d 733, 735 (2004), aff'd, 271 Va. 1, 624 S.E.2d 657 (2006). Themotionwas denied on February 22, 2011. Petitioner filed additional motions to modifyhis sentence pursuant to § 19.2-303and to stay his transportation to VDOC on September 12, October 22, October 27, and December 31, 2011, all ofwhich were denied in an order entered January 24, 2012.
On June 26, 2012, petitioner filed a petition for a state writ ofhabeas corpus in the Supreme Court of Virginia,  raising thefollowing claims:
(a), (h) He was denied effective assistance ofcounsel because counsel coerced him to accept the plea agreement by advising him that the agreement for a nine-year sentence was the best he could negotiate and that petitioner's failure to accept would resuh in his prosecution by federal authorities.
(b), (c), (d) He was denied effective assistance ofcounsel because counsel failed to file a suppression motion to challenge the reliability and veracity of the confidential informant.
(e), (f), (g) He was deniedeffectiveassistanceofcounsel because counsel did not think he would prevail at trial, even though the video recordings of the transactions did not clearly show petitioner selling drugs and the police found no drugs or money when they arrested him.
The Virginia Supreme Court found no merit to any ofthese argumentsand dismissed the petition on January 15, 2013. Stevenson v. Warden. Green Rock Corr. Center, R. No. 121167 (Va. Jan. 15, 2013).
Petitioner then turned to the federal forum and filed this application for relief pursuant to 28 U.S.C. § 2254 in the District Court for the Western District of Virginia on April 16, 2013. See Pet. at 10. An order directing that the action be transferred to the Eastern District of Virginia, the jurisdiction where the conviction was entered, was signed on July 1, 2013, but for reasons which are not apparent, the case was not actually transferred until May 5, 2013. Dkt. 3-4. As noted above, respondent has filed a Rule 5 Answer and a Motion to Dismiss the petition, and petitioner has filed a reply. Accordingly, this matter is now ripe for disposition. For the reasons which follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed with prejudice.
A petition for a writ ofhabeas corpus must be dismissed if filed later than one year after (1) the judgment becomes final; (2) any state-createdimpedimentto 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). Here, petitionerwas convicted on May 26, 2011. Since he took no direct appeal, theconviction became final onJune 27, 2011,  andthelimitations clock began to run.
The AEDPA's one-yearone-year statute of limitations is statutorily tolled during the pendency of any "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." See 28 U.S.C. § 2244(d)(2). In Wall v. Kholi, ___ U.S. ___, 131 S.Ct. 1278 (2011), the Supreme Court held "that the phrase collateral review' in § 2244(d)(2) meansjudicial review ofa judgment in a proceeding that is not part of the direct review, " id. at 1282, and determined that a motion to reduce sentence under Rhode Island law was not part of the direct review process and therefore tolled the AEDPA limitations period. Here, as noted above, petitioner filed several motions to modifyhis sentence commencing on February 22, 2011, which collectively were denied in an order entered on January 24, 2012. Because these motions were not part of the direct review process, they qualified as "application[s] for... collateral review" under § 2244(d)(2), and acted to toll the AEDPA limitations period. See Mixson v. Warden, 2011 WL 4578346 at *2 N. 3 (W.D.Va. Sept. 30, 2011) (holding that a Virginia inmate's motion to vacate or modify his sentence qualified for statutory tolling); Speller v. Johnson, 2012 WL 1038624 (E.D.Va. Mar, 27, 2012) (same). Here, then, the limitations period was tolled from June 27, 2011 until January 24, 2012.
From January 24, 2012 until June 26, 2012, the date petitioner filed his application for habeas corpus relief in the Supreme Court ofVirginia, 152days passed. From January 5, 2013, the date the SupremeCurt ofVirginiadismissed the state habeas corpus petition, until April 16, 2013, the date petitioner filed this federal action, an additional 100 days passed. When these periods are combined they establish that the instant petition was filed within the one-year AEDPA limitations period, and is timely.
II. Merits Standard of Review
When a state court has addressed the merits ofa claim raised in a federal habeas petition, a federal court maynot grantthe petitionbasedon the claimunlessthe state court's adjudication is contrary to, or an unreasonableapplication of, clearly established federal law, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is "contrary to" or "an unreasonable application of federal law requires an independent review of each standard. See Williams v. Tavlor, 529 U.S. 362, 412-13 (2000). A state court determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or ifthe state court decides a case differently than [the United States Supreme] Court has on a set ofmaterially indistinguishable facts." Id. at 413. Under the "unreasonable application" clause, the writ should be granted ifthe federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . Importantly, this standard ofreasonableness is an objective one. Id. ...