United States District Court, E.D. Virginia, Alexandria Division
Alvin L. Carter, Petitioner,
Harold Clarke, Respondent.
Alvin L. Carter, 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 multiple offenses in the Circuit Court of the City of Norfolk. Petitioner has paid the applicable filing fee. By an Order dated April 24, 2015, the petition was filed, and respondent was directed to show cause within thirty (30) days why the petition should not be granted. (Dkt. No. 18) On May 26, 2015, respondent filed a Rule 5 Answer and a Motion to Dismiss, accompanied by a supporting brief and exhibits. Petitioner was provided with the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and petitioner has filed no reply. After careful consideration, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.
On September 1, 2011, following a bench trial, petitioner was convicted of abduction with the intent to defile, rape, forcible sodomy, and assault and battery. Petitioner received a total sentence of 51 years incarceration with 25 years suspended. Case No. CR010002700-00-01 through -03.
Petitioner appealed the convictions, arguing that the trial court erred in denying his motion to hire an investigator and that the evidence was insufficient to sustain the convictions. The Court of Appeals denied the petition for appeal on February 15, 2012. Carter v. Commonwealth. R. No. 1626-11-1 (Va. Ct. App. Feb. 15, 2012); Resp. Ex. B. Petitioner sought further review of that determination, but the Supreme Court of Virginia refused the petition for appeal on July 6, 2012. Carter v. Commonwealth. R. No. 120395 (Va. July 6, 2012); Resp. Ex. C.
On April 25, 2013, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. In return, the Court addressed a letter to petitioner explaining that if petitioner intended to appeal the denial of his habeas application by the trial court, he had missed the deadline to do so. Resp. Ex. E. On August 5, 2013, the Court dismissed the petition as an original jurisdiction habeas action as successive pursuant to Va. Code § 8.01-654(B)(2), because petitioner had filed the earlier habeas action in the trial court. Carter v. Dir.. Dep't of Corr.. R. No. 130741 (Aug. 5, 2013); Resp. Ex. E. Petitioner's motion for rehearing was denied on November 7, 2013. Resp. Ex. F.
Petitioner then turned to the federal forum and filed the instant application for relief pursuant to § 2254, reiterating the two claims he made on direct appeal and the compound claim of ineffective assistance he raised in his state habeas proceedings. As noted above, respondent has moved to dismiss the petition, arguing both that the petition was filed untimely and that the claims lack merit. The court finds the second argument dispositive, and the petition thus will be dismissed, with prejudice.
II. The Petition is Timely
A § 2254 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).
Here, petitioner's conviction became final on October 4, 2012, ninety days after the Supreme Court of Virginia refused his petition on direct appeal, when the time expired during which he could have sought a writ of certiorari from the United States Supreme Court. See U.S. Sup. Ct. R. 13(1) (petitions for review are timely filed within 90 days of the entry of judgment by a state court of last resort); see also Lawrence v. Florida. 549 U.S. 327, 333 (2007). Thus, the §2254(d) one-year limitations period 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 proceedings pursued by petitioner were pending. See 28 U.S.C. § 2244(d)(2); Pace v. DiGuelielmo. 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); 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). In this case, petitioner's first state habeas application has no effect on calculating the limitations period, because it was filed on April 3, 2012 and denied on May 29, 2012. Resp. Ex. D. No timely appeal was taken of that result. Thus, the first habeas proceeding concluded several months before the limitations clock began to run on October 4, 2012, the date the convictions at issue became final, and it has no bearing on the timeliness vel non of this federal petition. See Wade v. Robinson. 327 F.3d 328, 333 n. 4 (4th Cir.), cert, denied. 540 U.S. 912 (2003) (federal courts look to the date on which a state conviction is affirmed on direct review, rather than to the date a state court denies collateral relief, as the date on which the custody judgment becomes final for purposes of computing the limitations period).
From October 4, 2012, the date the convictions became final, the limitations clock ran unchecked for 202 days until April 25, 2013, when petitioner filed his petition for a writ of habeas corpus in the Supreme Court of Virginia. The petition was dismissed as successive on August 5, 2013, and petitioner's motion for rehearing of that result was denied on November 7, 2013. The limitations clock then ran again from that date until February 20, 2014, the date the petitioner notarized the petition and presumptively placed it in the prison mailing system, a period of 104 days. When those periods are combined this federal petition was filed 306 days after the convictions became final, and the petition is timely. Even if it could be shown that the petition was not placed in the prison mailing system until a later date, it was received by the Clerk on April 1, 2014, and by then only 347 days of untolled time had elapsed since the date the convictions were final. Thus, in either case, this petition is timely.
III. The Claims of Ineffective Assistance are Procedurally Barred
Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in the appropriate state court. 28 U.S.C. § 2254(b); Granberrv v Greer. 481 U.S. 129 (1987); Rose v. Lundv. 455 U.S. 509 (1982). To comply with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O' Sullivan v. Boerckel. 526 U.S. 838, 845 (1999). Thus, a petitioner convicted in Virginia first must have presented the same factual and legal claims raised in his federal habeas corpus application to the Supreme Court of Virginia on direct appeal or in a state habeas corpus petition. See, e.g.. Duncan v. Henry, 513 U.S. 364 (1995).
However, "[a] claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court." Baker v. Corcoran.220 F.3d 276, 288 (4th Cir. 2000) (citing Gray v. Netherland.518 U.S. 152, 161 (1996)). Importantly, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim." Id. (quoting Gray. 518 U.S. at 162). Therefore, such ...