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Bennett v. Warden

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

March 6, 2015

KIMBERLY GRANT BENNETT, Petitioner
v.
WARDEN, Respondent.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

Petitioner, Kimberly Grant Bennett, a Virginia inmate proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging two separate judgments from the Circuit Court of Amherst County, Virginia, convicting her of offenses involving possession of a firearm, drug distribution, and child neglect. Bennett argues that counsel provided ineffective assistance on several grounds and that the evidence was insufficient to support her convictions. The court finds that Bennett's challenges to her firearm and drug convictions are untimely filed, that her ineffective assistance of counsel claims are procedurally barred, and that the state court's adjudication of her sufficiency of the evidence claims was not contrary to, or an unreasonable application of, clearly established federal law and did not result in a decision that was based on an unreasonable determination of the facts. Therefore, the court grants respondent's motion to dismiss.

I.

Bennett is detained pursuant to two judgments of the Circuit Court of Amherst County entered on June 14, 2011 and August 24, 2011. On June 14, 2011, the court convicted Bennett of possessing a firearm as a convicted felon, in violation of Virginia Code § 18.2-308.2, and distributing cocaine, in violation of Virginia Code § 18.2-348, and sentenced her to total active term of two years of incarceration. Bennett appealed these convictions, arguing that the evidence was insufficient to support her convictions. The Court of Appeals of Virginia denied her appeal on January 19, 2012 and the Supreme Court of Virginia refused her appeal on July 2, 2012. Bennett did not file a petition for writ of certiorari to the Supreme Court of the United States.

On August 24, 2011, the Circuit Court of Amherst County convicted Bennett of child neglect, in violation of Virginia Code § 18.2-371.1, and sentenced her to a total active term of ten months of incarceration. Bennett appealed this conviction, arguing that the evidence was insufficient to support her conviction. The Court of Appeals of Virginia denied her appeal on August 8, 2012, and the Supreme Court of Virginia refused her appeal on January 25, 2013. Bennett did not file a petition for writ of certiorari to the Supreme Court of the United States.

Bennett, proceeding without counsel, filed a state habeas petition in the Circuit Court of Amherst County on January 24, 2014, alleging that the evidence was insufficient to support her convictions, counsel provided ineffective assistance, and Bennett never heard the audio recording counsel told her about. On March 31, 2014, the circuit court dismissed Bennett's habeas petition, finding that her claims concerning her drug and firearm convictions were untimely filed pursuant to Virginia Code § 8.01-654(A)(2), that her claims concerning sufficiency of the evidence were not cognizable in habeas corpus under Henry v. Warden, 265 Va. 246, 249, 576 S.E.2d 495, 496 (2003), because they were previously litigated on direct appeal, that her ineffective assistance of counsel claims failed on their merits under Strickland v. Washington, 466 U.S. 668 (1984), and that her claim concerning the audio recording was without merit. Bennett did not appeal this decision to the Supreme Court of Virginia.

Bennett filed the instant federal habeas petition on May 22, 2014, alleging that the evidence was insufficient to support her convictions and that counsel provided ineffective assistance on several grounds.[1] The court served Bennett's petition upon the respondent, and this matter is currently before the court on respondent's motion to dismiss.

II.

Bennett's claims concerning her firearm and drug convictions are untimely filed and, therefore, the court dismisses them. A one-year statute of limitations applies when a person in custody pursuant to the judgment of a state court files a federal petition for a writ of habeas corpus. 28 U.S.C. § 2244(d).[2] A petitioner must demonstrate either the timeliness of her petition pursuant to § 2244(d) or that the principle of equitable tolling applies in her case. See Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). Otherwise, an untimely petition must be dismissed by a federal district court. 28 U.S.C. § 2244(d)(1).

Under § 2244(d)(1)(A), Bennett's firearm and drug convictions became final on October 1, 2012, when her time to file a petition for writ of certiorari to the Supreme Court of the United States expired. Therefore, Bennett had until October 1, 2013 to file a timely federal habeas petition. Bennett did not meet this deadline; in fact, by that date, Bennett had yet to file her state habeas petition.[3] Accordingly, Bennett's claims concerning her firearm and drug convictions are barred unless she demonstrates grounds for equitable tolling of the one-year statute of limitations.

A district court may apply equitable tolling only in "those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Rouse v. Lee, 339 F.3d. 238, 246 (4th Cir. 2003) (citing Harris, 209 F.3d at 330). Thus, a petitioner must have "been pursuing his rights diligently, and... some extraordinary circumstance stood in his way" to prevent timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010).

In support of an equitable tolling argument, Bennett states that counsel "misinformed" her as to her "appeal processing" and that she was not "aware of all the petitions that could have been filed" until recently. However, these allegations are not sufficient grounds to equitably toll the statute of limitations. See Rouse, 339 F.3d at 248 (quoting Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002) ("Ineffective assistance of counsel generally does not warrant equitable tolling.")); Harris, 209 F.3d at 330-31; United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) ("[E]ven in the case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling."). Further, Bennett has not demonstrated that she exercised reasonable diligence in investigating and bringing her claims. Therefore, the court finds that Bennett has not demonstrated any grounds for equitable tolling and, thus, her petition is untimely as to her firearm and drug convictions.[4] The court will, however, address Bennett's claims as they relate to her child neglect conviction.

III.

Bennett alleges that counsel provided ineffective assistance on several grounds.[5] The court finds that these claims are procedurally defaulted and Bennett has not demonstrated grounds to excuse her ...


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