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Whedbee v. Director of Department of Corrections

United States District Court, E.D. Virginia, Alexandria Division

August 24, 2016

Paris M. Whedbee, Petitioner,
v.
Director of the Virginia Department of Corrections, Respondent.

          MEMORANDUM OPINION AND ORDER

          T. S. ELLIS, III UNITED STATES DISTRICT JUDGE.

         Paris M. Whedbee, 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 convictions entered in the Circuit Court of the City of Virginia Beach. Petitioner has paid the filing fee. By Order dated March 3, 2016, petitioner was given the opportunity to show why the petition should not be barred from review by the applicable statute of limitations, 28 U.S.C. § 2244(d). Petitioner submitted an affidavit claiming that he is entitled to equitable tolling of the limitations period based in part upon the discovery of new evidence. See Dkt. No. 4. By Order dated July 5, 2016, respondent was directed to address the issues of timeliness of the instant petition. Dkt. No. 5. Respondent filed a Motion to Dismiss and petitioner filed a Brief in Opposition for Motion to Dismiss. Dkt. Nos. 10, 14. For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition will be dismissed, as time-barred.

         I. Background

         The record reflects the following. Petitioner pled guilty to the offense of robbery of a bank in violation of Va. Code §§ 18.2-58 and 18.2-10 in the Circuit Court of the City of Virginia Beach. Dkt. No. 12. Petitioner was sentenced to ten years' imprisonment on March 10, 2010. Id. Petitioner did not file a direct appeal of his conviction. Id.

         On August 14, 2013, petitioner filed a petition for a writ of habeas corpus in the Circuit Court for the City of Virginia Beach. Id. Petitioner stated that he was diagnosed with PTSD on February 8, 2013; however, he also asserted that he had been suffering from this condition since 1983 and that its progression was worsened by his substance abuse. Dkt. No. 1. Thus, petitioner argued, this newly discovered evidence would have produced a different outcome in his trial because he could have pursued an insanity defense. Id. The state habeas petition was deemed time-barred by the circuit court on December 3, 2013. Dkt. No. 12. Petitioner filed a petition for appeal with the Supreme Court of Virginia, which was refused on December 22, 2014. Dkt. No. 4. The Supreme Court of Virginia subsequently denied petitioner's petition for rehearing on March 5, 2015. Id.

         Petitioner filed the instant petition on January 25, 2016.[1] Dkt. No. 1. Petitioner argues that he "presented Newly Discovered Evidence on Aug. 13, 2013 in a Habeas Corpus to Virginia Beach Circuit Court" and that "[d]uring [his] pursuit to challenge his conviction in the State Court an extraordinary circumstances aroused [sic]. The Institutional Medical Dept. mis-placed Petitioner['s] medical record which ultimately denied him access to the Court." Id. (emphasis in original). Thus, petitioner argues, he is entitled to equitable tolling because "he had no evidence to present to the Federal Court." Id. Petitioner's missing medical records appear to have been located by June 12, 2014.[2] Dkt. No. 4.

         II. Section 2244(d)(1)

         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)(1)(A)-(D).

         Respondent argues that the statute of limitations began running 30 (thirty) days after the date of petitioner's conviction because that is when the conviction became final, as petitioner did not file a direct appeal. United States v. Williams. 139 F.3d 896 (table), 1998 WL 120116 (4th Cir. Mar. 5, 1998) at *2 ("Under Virginia law, a conviction is final thirty days after the entry of the judgment of conviction."). Thus, respondent argues, under § 2244(d)(1)(A), the one-year limitations period began to run on April 9, 2010.

         Petitioner argues that the running of the statute of limitations is governed by § 2244(d)(1)(B) because his missing medical records were a state-created impediment to filing his petition. Specifically, petitioner argues that without the medical records, "he had no evidence to present to the Federal Court;" however, petitioner's missing medical records did not "impede" him from filing his petition because lack of evidence does not prevent the filing of a petition. See Minter v. Beck. 230 F.3d 663, 666 (4th Cir. 2000) ("the term 'impediment' speaks to hindering an effort while the term 'futile' speaks to an unsuccessful result of an already undertaken effort). Therefore, the running of the statute of limitations is not governed by § 2244(d)(1)(B).

         Alternatively, petitioner argues that the running of the statute of limitations is governed by § 2244(d)(1)(D) and did not begin to run until he was diagnosed with PTSD because that diagnosis is the factual predicate of his claim. Assuming without deciding that petitioner's PTSD could not have been discovered with due diligence prior to his diagnosis, the running of the statute of limitations is governed by § 2244(d)(1)(D) and it began running on February 8, 2013.

         III. Statutory Tolling

         In calculating the limitations period, the Court generally must exclude the time during which state collateral proceedings pursued by a petitioner were pending, 28 U.S.C. § 2244(d)(2); however, where the state collateral proceeding is not timely filed, the statute of limitations is not tolled while such proceedings are pending. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)"). Here, because petitioner's state habeas petition was deemed untimely, the limitations period ran unchecked for almost three years from February 8, 2013 until January 25, 2016, which is well over the one year limit.

         Accordingly, the petition is untimely under § 2244(d), unless petitioner can establish that the statute of limitations does not apply or should otherwise be tolled. See Hill v. Braxton.277 F.3d 701, 707 (4th Cir. 2002) (requiring notice and the ...


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