Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gaither v. Zook

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

February 10, 2017

TORIAN GAITHER, Petitioner,
v.
DAVID ZOOK, Respondent.

          MEMORANDUM OPINION

          M. Hannah Lauck United States District Judge.

         Torian Gaither, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1) challenging his convictions in the Circuit Court of the City of Hampton, Virginia ("Circuit Court"). On December 1, 2016, the Magistrate Judge issued a Report and Recommendation that recommended dismissing Gaither's § 2254 Petition as procedurally defaulted and, in the alternative, as lacking in merit. (ECF No. 18.) Gaither filed objections. (ECF No. 19.) On January 18, 2017, the Magistrate Judge issued an Amended Report and Recommendation that corrected an inconsistency in the Report and Recommendation. (See ECF No. 20, at 1.) The Court explained that "in the original Report and Recommendation, the Court declined to decide whether Gaither had established cause to excuse his default." (Id. at 1 n.l.) The Court further noted: "Although not raised by Gaither, the Court now issues an Amended Report and Recommendation that conclusively addresses any cause[] to excuse Petitioner's procedural default and recommends that Petitioner's claim be dismissed as procedurally defaulted, and in the alternative, as lacking in merit." (Id. at 1.) The Court advised Gaither that he could file objections within fourteen (14) days after the entry of the Amended Report and Recommendation. Gaither has not responded. For the reasons that follow, Gaither's objection will be OVERRULED, the Amended Report and Recommendation will be ACCEPTED and ADOPTED, and the action will be DISMISSED.

         I. THE AMENDED REPORT AND RECOMMENDATION

         The Magistrate Judge made the following findings and recommendations:

         A. Procedural History and Gaither's Claim

         Gaither was convicted in the Circuit Court of the City of Hampton, Virginia, of first degree murder, burglary, conspire to rob, conspire to commit burglary, and robbery. Commonwealth v. Gaither, Nos. 11-321-00 through 11-321-04, at 1-2 (Va. Cir. Ct. Jan. 12, 2012). On January 12, 2012, the Circuit Court entered final judgment and sentenced Gaither to an active sentence of life imprisonment plus thirty years. Id. at 2-3.

         Gaither appealed his convictions. On October 1, 2012, the Court of Appeals for Virginia denied Gaither's petition for appeal. Gaither v. Commonwealth, No. 0147-12-1, at 1 (Va. Ct. App. Oct. 1, 2012). On June 21, 2013, the Supreme Court of Virginia granted Gaither's motion for delayed appeal. Gaither v. Commonwealth, No. 0147-12-1, at 1 (Va. June 21, 2013). Gaither, through counsel, raised the following assignments of error:

1. [The] Court erred in denying the motion to strike on evidence sufficient to find that the Appellant had committed the crimes charged in the Indictments?
2. The Court erred in applying the sentencing Guidelines in the Appellant's Pre-Sentence Report [to] improperly reflect a higher range due to conduct that occurred after the indicted conduct but was sentenced first and would have required a written explanation by the Court when deviating from the range?
3. Appellant's Due Process rights violated by § 18.2-298.01(F) which does not permit Appellate review of Sentencing Guidelines issues?

         Petition for Appeal at 11, Gaither v. Commonwealth, No. 140016 (Va. filed Jan. 2, 2014). On July 25, 2014, the Supreme Court of Virginia dismissed Gaither's petition for appeal with respect to the first and third assignments of error because they "fail[ed] to comply with the requirements of Rule5:17(c)(1)(iii), [1] as these assignments of error d[id] not address the Court of Appeals['] ruling in Torian Marquise Gaither v. Commonwealth of Virginia, Court of Appeals No. 0147-12- 1." Gaither v. Commonwealth, No. 140016, at 1 (Va. July 25, 2014). The Supreme Court of Virginia refused Gaither's petition for appeal with respect to the second assignment of error. Id.

         On January 23, 2014, while his appeal to the Supreme Court of Virginia was still pending, Gaither filed a Motion to Vacate Void Judgment with the Circuit Court. Motion to Vacate Void Judgment at 16, Commonwealth v. Gaither, Nos. 11-321-00 through 11-321-04 (Va. Cir. Ct. filed Jan. 23, 2014). On November 13, 2014, the Circuit Court denied Gaither's Motion to Vacate Void Judgment. Commonwealth v. Gaither, Nos. 11-321-00 through 11-321-04, at 1 (Va. Cir. Ct. Nov. 13, 2014). Gaither noted an appeal with the Circuit Court. Notice of Appeal at 1, Commonwealth v. Gaither, Nos. 11-321-00 through 11-321-04 (Va. Cir. Ct. filed Nov. 25, 2014). As of April 5, 2015, Gaither was inquiring about the status of his appeal. Letter at 1, Commonwealth v. Gaither, Nos. 11-321-00 through 11-321-04 (Va. Cir. Ct. filed Apr. 10, 2015). The record is devoid of any further information about the outcome of that appeal.

         On October 7, 2015, Gaither filed a petition for a writ of habeas corpus with the Supreme Court of Virginia. Petition for Writ of Habeas Corpus at 1, Gaither v. look, No. 151522 (Va. filed Oct. 7, 2015). In his state habeas petition, Gaither raised one claim for relief: that he was unable to pursue two of his assignments of error on direct appeal because of appellate counsel's ineffective assistance. Petition for Writ of Habeas Corpus Attach., Gaither v. Zook, No. 151522 (Va. filed Oct. 7, 2015). On December 2, 2015, the Supreme Court of Virginia dismissed Gaither's petition as untimely filed under Virginia Code § 8.01-654(A)(2). Gaither v. Zook, No. 151522, at 1 (Va. Dec. 2, 2015). The Supreme Court of Virginia denied Gaither's petition for rehearing on March 24, 2016. Gaither v. Zook, No. 151522, at 1 (Va. Mar. 24, 2016).

         Gaither asserts that he placed his § 2254 Petition in the prison mailing system for mailing to this Court on December 6, 2015. (§ 2254 Pet. 14.)[2] The Court finds Gaither's assertion to be incredible, as the envelope in which Gaither mailed his § 2254 Petition is postmarked January 20, 2016. (ECF No. 1-1, at 1.) The Court believes that Gaither mailed his § 2254 Petition in January 2016. Nevertheless, the Court utilizes December 6, 2015 as the filed date. See Houston v. Lack, 487 U.S. 266, 276 (1988). In his § 2254 Petition, Gaither asserts the following claim for relief:

Claim One: Because of appellate counsel's ineffective assistance, Gaither was unable to pursue two of his assignments of error in his appeal to the Supreme Court of Virginia. (§ 2254 Pet. 15-16.)

         On June 17, 2016, Respondent moved to dismiss on the grounds that Gaither's claim lacks merit, that his § 2254 Petition is barred by the one-year statute of limitations governing federal habeas petitions, [3] and that his claim is defaulted. (Br. Supp. Mot. Dismiss 2-7, ECF No. 16.) Despite Respondent providing Roseboro[4]notice, Gaither has not responded. As explained below, it is RECOMMENDED ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.