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Horn v. Clarke

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

June 2, 2016

HAROLD W. CLARKE, Respondent.


          Hon. Michael F. Urbanski United States District Judge

         Corey Phillip Horn, a Virginia prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his convictions entered by the Circuit Court for the City of Staunton. Respondent filed a motion to dismiss, and Petitioner responded, making the matter ripe for disposition. After reviewing the record, the court dismisses the petition as time barred.


         After pleading guilty, the Circuit Court for the City of Staunton sentenced Petitioner on February 13, 2012, to twenty years' incarceration with fifteen years suspended for computer solicitation of a child, in violation of Virginia Code § 18.2-374.3, and for attempted indecent liberties, in violation of Virginia Code § 18.2-370. Petitioner did not appeal.

         Petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Virginia nearly two years later on February 4, 2014. The Supreme Court of Virginia dismissed the petition on August 20, 2014, and denied a petition for rehearing on November 6, 2014. Nearly a year later, Petitioner filed his federal petition on November 16, 2015. See R. Gov. § 2254 Cases 3(d) (describing the prison-mailbox rule).


         Habeas petitions filed under § 2254 are subject to a one-year period of limitation. 28 U.S.C. § 2244(d)(1).[1] Generally, this period begins to run from the date on which the judgment of conviction becomes final.[2] 28 U.S.C. § 2244(d)(1)(A). A conviction becomes final once the availability of direct review is exhausted. United States v. Clay. 537 U.S. 522, 524 (2003). The one-year filing period is tolled while a convict's "properly filed application for State post-conviction or other collateral review" is "pending." 28 U.S.C. § 2244(d)(2); see Wall v. Kholi, 562 U.S. 545, 558-60 (2011) (discussing proceedings that qualify as collateral review).

         Petitioner's § 2254 petition is untimely under § 2244(d)(1)(A). Petitioner's convictions became final on March 14, 2012, when the time expired to seek appellate review from the Court of Appeals of Virginia. See Va. Sup. Ct. R. 5A:6(a) (stating an appeal from the trial court to the Court of Appeals is allowed only if the appellant files a notice of appeal within thirty days of the final judgment). Therefore, Petitioner had until March 14, 2013, to timely file a federal habeas petition.

         Petitioner filed his state habeas petition on February 4, 2014, which was nearly two years after his convictions became final. Accordingly, the federal statute of limitations had already expired by the time Petitioner filed his state habeas petition, and statutory tolling is not possible. See, e.g.. Minter v. Beck. 230 F.3d 663, 665 (4th Cir. 2000) (recognizing that state habeas petitions cannot revive an already expired federal limitations period).

         Citing McQuiggin v. Perkins. __U.S. __, 133 S.Ct. 1924, 1928 (2013). and Coleman v. Thompson. 501 U.S. 722, 750 (1991), Petitioner alleges his "actual innocence" warrants excusing the petition's untimeliness. "[When] a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray v. Carrier. 477 U.S. 478, 496 (1986). Notably, "actual innocence[] means factual innocence, not mere legal insufficiency." Bousley v. United States. 523 U.S. 614, 623 (1998).

         Petitioner's arguments in support of his actual innocence claim assert legal innocence, not factual innocence.[3] Petitioner alleges that the Commonwealth violated numerous state and federal laws to prosecute him because the Commonwealth "wiretapped" or "intercepted" his communications with the police officer who misrepresented being a fourteen year old girl. Petitioner's legal arguments are not sufficient to establish factual innocence and are not legally persuasive. See, e.g.. 18 U.S.C. §2511(2)(c) (not criminalizing the interception of communications for which a party to the conversation consents to interception); Va. Code §19.2-62(B)(2) (same). Accordingly, Petitioner fails to establish his "actual innocence" or that a fundamental miscarriage of justice occurred. See, e.g., Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir. 2009).

         Equitable tolling is available 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) (en banc) (internal quotation marks omitted) (citing Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). 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, 649-50(2010).

         Petitioner's lack of knowledge about legal process or the statutory deadline for federal habeas relief does not support granting such extraordinary relief. Harris, 209 F.3d at 330. Furthermore, the court does not find any extraordinary circumstance in this record that prevented Petitioner from filing a timely petition. See, e.g.. United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (noting pro se status and ignorance of the law does not justify equitable tolling); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (noting that unfamiliarity with the law due to illiteracy or pro se status does not toll limitations period). Accordingly, ...

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