United States District Court, E.D. Virginia, Alexandria Division
Melvin A. Britt, Petitioner,
Commonwealth of Virginia, Respondent.
Anthony J. Trenga, United States District Judge
Melvin A. Britt, 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 three counts of maliciously shooting at an occupied vehicle entered on a plea of guilty in the Circuit Court of the City of Norfolk. Petitioner was granted leave to proceed in forma pauperis in the action. By an Order dated November 30, 2015, petitioner was allowed thirty (30) days within which to show cause why his petition should not be dismissed as barred by the statute of limitations, 28 U.S.C. § 2254(d). After petitioner complied with those instructions, respondent was ordered to submit a preliminary response to the petition, confined to the issues of whether the petition was filed timely and if not, whether petitioner is entitled to equitable tolling of the limitations period. On February 4, 2016, respondent filed a Motion to Dismiss the petition as barred by the statute of limitations, accompanied by a memorandum of law 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 filed a Brief in Opposition to the Motion to Dismiss on February 29, 2016. After careful consideration, respondent's Motion to Dismiss will be granted, and the petition will be dismissed as time-barred.
On July 23, 2010, petitioner was convicted of the aforementioned offenses, and was sentenced to thirty (30) years imprisonment with ten (10) years suspended. Case Nos. CR10000107-03 through -05. Petitioner took a direct appeal, which was refused by the Court of Appeals of Virginia on February 25, 2011. R. No. 1517-10-1. The Supreme Court of Virginia refused a further appeal on September 1, 2011. R. No. 110584.
Petitioner filed a petition for a state writ of habeas corpus in the Norfolk Circuit Court on March 27, 2012, which was dismissed on August 30, 2012. Case No. CL12-2435. He took no appeal of that decision during the prescribed period, and by letter dated January 28, 2013, the Clerk of the Supreme Court of Virginia advised Britt that the record of his case was being returned to the Norfolk court because the appeal period had expired. Resp. Ex. 1.
Over two years later, on March 11, 2015, Britt filed a petition for appeal of the Norfolk Circuit Court's habeas judgment in the Supreme Court of Virginia. In it, he alleged:
Petitioner states at no time did he receive a Final Order from City of Norfolk's Circuit Court. On January 28, 2013, letter was sent to Clerk of Circuit Court, stating, no Petition for Appeal was sent by petitioner, therefore, record, transcripts and exhibits in the case of Melvin A. Britt v. Commonwealth - case no. CR10000107-00 & CL12002435-00 were returned.
Petitioner states, he inquired, regarding, when were Final Order giving [sic] in above cases, and the reason(s) he was unable to file, a timely Petition for Appeal to Supreme Court of Virginia, (see exhibits__). Petitioner clearly stated, he did not receive Order from Keen Mountain Correctional Center's mailroom, and never signed legal mail log book to verify receiving said legal mail (with Final Order) from Circuit Court.
Resp. Ex. 2 at 2. On April 24, 2015, the Supreme Court of Virginia dismissed the petition on the ground that "the appeal was not perfected in the manner provided by law because the appellant failed to timely file the petition for appeal." R. No. 150390; Resp. Ex. 3. Almost seven (7) months elapsed before petitioner filed the instant application for §2254 relief on November 13, 2015.
II. The Petition is Untimely
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 November 30, 2011, when the time expired during which he could have petitioned the United States Supreme Court for a writ of certiorari. 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). Here, after petitioner's conviction became final on November 30, 2011, 116 days passed before he filed his state habeas corpus application in the Norfolk Circuit Court on March 27, 2012. The Norfolk court dismissed the petition on August 30, 2012, and the dismissal became final on November 30, 2012, when the time during which an appeal to the Supreme Court of Virginia could have been filed. Thereafter, the limitations clock ran unchecked until Britt delivered this federal petition to his institution's mailroom on November 13, 2015, a period of 1, 077 ...