United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
Craig William Brown, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of first degree murder and other offenses in the Circuit Court for the City of Norfolk. On November 10, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief. Petitioner was provided the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and after obtaining an enlargement of time he filed a Brief in Opposition to Respondent's Motion to Dismiss on December 4, 2014. Accordingly, the matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice, as untimely.
On February 10, 2011, following a jury trial, Brown was convicted of first degree murder, robbery, and two counts of using a firearm in the commission of a felony. He was sentenced to serve two life terms plus eight years incarceration. Norfolk Circuit Court Nos. CR09003590-01 and -03, CR10000746-00 and -01.
Petitioner took a direct appeal to the Court of Appeals of Virginia, which denied his petition for appeal on November 22, 2011. Brown v. Commonwealth, R. No. 0484-11-1 (Va. Ct. App. Nov. 22, 2011). The Supreme Court of Virginia refused Brown's petition for further appeal on April 30, 2012. Brown v. Commonwealth, R. No. 112273 (Va. Apr. 30, 2012). Brown's petition for rehearing of that determination was denied on September 20, 2012.
Brown submitted a petition for writ of habeas corpus to the Supreme Court of Virginia that was date-stamped as received by the Clerk of Court on October 4, 2013. The Court dismissed the petition as untimely filed pursuant to Va. Code § 8.01-654(A)(2). Brown v. Dir., Dep't of Corrections, R. No. 131541 (Va. Mar. 26, 2014). Brown's petition to set aside that judgment and grant rehearing was denied on June 12, 2104. Brown then turned to the federal forum and filed the instant application for relief pursuant to 28 U.S.C. § 2254 on August 20, 2014. As noted above, the matter is now ripe for review.
II. The Petition is Untimely
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)(1)(A)-(D). In this case, Brown's convictions became final on December 19, 2012, the last date he could have petitioned the Supreme Court of the United States for a writ of certiorari. Therefore, the § 2244 limitations period began to run on that date.
In calculating the one-year limitations period, a court must exclude the time during which properly-filed state collateral proceedings pursued by petitioner were pending. See 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (determining that the definition of "properly filed" state collateral proceedings, as required by § 2244(d)(2), is based on the applicable state law as interpreted by state courts). Here, although Brown filed a petition for a state writ of habeas corpus, the Supreme Court of Virginia dismissed the petition upon the express holding that it was filed outside the time limits prescribed at Va. Code § 8.01-654(A)(2). Therefore, that proceeding did not act to toll the § 2244(d) limitations period. Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that a state collateral proceeding is not "properly filed" for purposes of tolling the federal limitations period if it is filed untimely under state law). Accordingly, Brown's limitations clock ran unchecked from December 19, 2012, the date his convictions became final, until he filed this federal petition on August 20, 2014. As that period exceeds one year by a margin of 244 days, this petition is untimely and subject to dismissal. See Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002).
In his Brief opposing respondent's Motion to Dismiss, petitioner argues in essence that the Supreme Court of Virginia erred in dismissing his state habeas corpus application as untimely. He explains that after the petition was filed, he received a letter from the Chief Deputy Clerk of the Court, which stated in relevant part:
Although you certified that you mailed your petition on September 20, the envelope in which it was mailed was stamped as having been received by the mailroom on October 2, and it was postmarked that same date. Accordingly, please provide me with a prison official's notarized statement showing the date that the petition was deposited in the institution's internal mail system.
Pet. Brief, Ex. 6, emphasis original. In response, petitioner submitted to the Court a document captioned "Affidavit" which stated in its entirety:
I, Counselor Blake Saunders, at Wallens Ridge State Prison, did witness offender Craig Brown #1174309 place his Habeas Corps petition in the institutional mail on September 20th of 2013.
Pet. Brief, Ex. 7. The document was dated December 12, 2013 and was notarized, but it bore no statement that it was signed under penalty of perjury. As discussed above, the Supreme Court of Virginia subsequently dismissed Brown's habeas petition upon an express finding that it was filed untimely pursuant to Va. Code § 8.01-654(A)(2). Petitioner argues here that "[t]o dismiss the habeas petition was untimely ...