United States District Court, W.D. Virginia, Roanoke Division
GEORGE H. SPIKER, JR., Petitioner,
HAROLD W. CLARKE, Respondent.
H. Spiker, Jr., Pro Se Petitioner
W. Blanton, Assistant Attorney General, Office of the
Attorney General, Richmond, Virginia, for Respondent.
P. Jones United States District Judge
H. Spiker, Jr., a Virginia inmate, has filed a pro se
petition for habeas corpus under 28 U.S.C. § 2254,
contending that his 2010 state convictions for computer
solicitation of a minor for sexual acts are void.
relies on MacDonald v. Moose, 710 F.3d 154, 156 (4th
Cir.), cert. denied, 134 S.Ct. 200 (2013). In
MacDonald, the Fourth Circuit granted habeas relief
to a Virginia inmate who had been convicted of soliciting a
minor to commit a felony. The predicate felony charged was
MacDonald’s solicitation of a minor to perform oral sex
on him, in violation of Virginia’s "Crime Against
Nature" statute, Va. Code § 18.2-361(A), which
criminalized carnal knowledge "by the anus or by or with
the mouth, " commonly known as sodomy. Relying upon
Lawrence v. Texas, 539 U.S. 558 (2003), which struck
down Texas’ anti-sodomy statute as unconstitutional,
the Fourth Circuit held that section 18.2-361(A) was facially
unconstitutional because by its terms it criminalized sodomy
between consenting adults, and thus could not support
MacDonald’s solicitation conviction, even though his
actual conduct involved a minor.
review of the record, I conclude that the respondent’s
Motion to Dismiss must be granted, because the habeas
petition is untimely, procedurally defaulted, and without
September 14, 2009, a Virginia grand jury charged Spiker with
five counts of using a computer to solicit a person under 15
years of age to perform certain proscribed sexual acts in
violation of Va. Code § 18.2-374.3. One of the
proscribed sexual acts included in section 18.2-374.3
referenced Va. Code 18.2-361. Spiker pleaded not guilty and
was tried before a jury. As described in more detail
hereafter, the Commonwealth’s evidence included screen
shots of online chats Spiker had had with a police detective
who had identified himself online as a 13-year-old girl.
Spiker was convicted on all five counts. On March 15, 2010,
based upon the verdict of the jury fixing the punishment, the
Circuit Court of Louisa County sentenced Spiker to 20 years
in prison on each count, for a total of 100 years.
sought an appeal to the Court of Appeals of Virginia,
challenging venue and the sufficiency of the evidence. The
court affirmed his convictions, Spiker v.
Commonwealth, 711 S.E.2d 228 (Va. Ct. App. 2011), and
the Supreme Court of Virginia refused his subsequent appeal,
Spiker v. Commonwealth, Record No. 111392 (Va. Oct.
25, 2011). (ECF No. 20, p. 24.) Spiker did not file a
petition for a writ of certiorari in the United States
Supreme Court or seek habeas relief in the state courts.
October 3, 2012, Spiker filed a pleading in state court
called "Petition/Motion to Void Judgment." Spiker
contended that he was entitled to relief from his convictions
for lack of subject-matter jurisdiction and because of fraud
on the court, related to his waiver of a preliminary hearing.
The Circuit Court of Louisa County dismissed this petition by
order dated July 1, 2013.
returned to the same court on February 18, 2014, with a
"Motion to Void Judgment." In this motion, Spiker
alleged that his conviction should be voided because (1) Va.
Code § 18.2-361 had been held unconstitutional in
MacDonald; (2) the circuit court lacked
subject-matter jurisdiction to convict him because there had
been no preliminary hearing; and (3) he had been deprived of
various trial-related rights, including the effective
assistance of counsel. The court found that Spiker
"ha[d] not established a jurisdictional defect and the
Court [found] that no fraud, extrinsic or otherwise, ha[d]
been established" and noted that his claims should have
been raised in a habeas corpus petition. Spiker v.
Commonwealth, No. CL14-74 (Va. Cir. Ct. May 28, 2014).
(ECF No. 14-5, p. 8.) Because Spiker had filed his motion
outside the time limit under Virginia law for filing a
petition for a writ of habeas corpus, the court found that
such a petition would be untimely. (Id. at p. 2
n.1.) The Supreme Court of Virginia refused his petition for
appeal, Spiker v. Commonwealth, Record No. 141322
(Va. Jan. 22, 2015) (ECF No. 20, p. 59), and his subsequent
petition for certiorari was denied by the United States
Supreme Court, Spiker v. Virginia, 135 S.Ct. 2319
signed and dated his present federal habeas petition on June
3, 2015. He alleges one ground for relief - that "his
state criminal convictions violate the due process clause of
the 14th Amendment because state statute 18.2-361 subsection
(A) is unconstitutional facially and as applied to his
cases." (Pet. 17, ECF No. 1.) The respondent has moved
to dismiss Spiker’s petition as untimely, procedurally
defaulted, and without merit. Spiker has responded to the
Motion to Dismiss, making the matter ripe for consideration.
one-year period of limitation for filing a habeas petition
under § 2254 begins to run on the latest of four dates:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). A conviction becomes final once
the availability of appeal is exhausted and the time for
filing a petition for a writ of certiorari in the United
States Supreme Court has expired. Clay v. United
States, 537 U.S. 522, 525 (2003); See Sup. Ct.
R. 13(1) (providing time limit of 90 days from entry of state
court final judgment to file certiorari petition).
time during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection." 28 U.S.C. § 2244(d)(2). No such
tolling of the federal filing period is invoked, however, by
an improperly filed application for state post-conviction
relief. Artuz v. Bennett, 531 U.S. 4, 8-9 (2000).
convictions became final and his federal habeas time clock
began to run on January 23, 2012, 90 days after the Supreme
Court of Virginia refused his direct appeal and he failed to
file a petition for a writ of certiorari. On October 3, 2012,
254 days after the federal filing period had elapsed, Spiker
filed his "Petition/Motion to Void Judgment, " in
state court seeking to have these convictions vacated. The
state court dismissed this motion as untimely filed, however.
Specifically, the court held
that it lacks jurisdiction to consider Spiker’s motion
because it is untimely. An otherwise final judgment is
subject to collateral attack only if the Court
lacked subject matter jurisdiction or if the
judgment was secured by extrinsic fraud. The Court finds
Spiker has failed to establish either circumstance in this
matter. Accordingly, the Court holds Spiker’s motion is
untimely and it is, therefore, DISMISSED WITH PREJUDICE. Rule
Spiker v. Commonwealth, No. CL12-367 (Va. Cir. Ct.
July 1, 2013). (ECF No. 14-2, p. 2.) Because the state court
found Spiker’s petition to be untimely, and therefore
improperly filed, the filing and pendency of the petition did
not toll the federal filing period under § 2244(d)(2).
See Artuz, 531 U.S. at 9 ("If, for example, an
application is erroneously accepted by the clerk of a court
lacking jurisdiction, . . . it will be pending, but
not properly filed.") Thus, under §
2244(d)(1)(A), Spiker’s one-year filing period expired
on January 22, 2013, more than two years before he filed his
present habeas petition.
argues that his current claim should be deemed timely under
§ 2244(d)(1)(D), using the date when he could first have
discovered the MacDonald decision as the
"factual predicate" ...