United States District Court, E.D. Virginia, Alexandria Division
Javon L. Sawyer, Petitioner,
Warden J. Kiser, Respondent.
O'Grady United States District Judge.
MATTER comes before the Court on a Motion to Dismiss a
petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254 by Javon L. Sawyer, a Virginia inmate
proceeding pro se, to challenge the constitutionality of
convictions entered in the Circuit Court for the City of
Suffolk. Respondent filed the instant motion along with a
supporting brief and exhibits on May 6, 2016, and supplied
petitioner with the notice required by Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule
7(K). (Dkt. No. 7-9). Petitioner filed a response to the
Motion to Dismiss on May 23, 2016. (Dkt. No. 11).
Accordingly, this matter is now ripe for disposition. For the
reasons which follow, respondent's Motion to Dismiss will
be granted, and the petition will be dismissed with
prejudice, as time-barred.
November 15, 2007, petitioner pleaded guilty to one count of
receiving stolen property which had been reduced from an
original charge of grand larceny. Case No. CR07-104.
Following the preparation of a presentence report, he
received a sentence of five years incarceration with four
years suspended. In a separate case stemming from the same
incident, petitioner was tried to a jury on a charge of
possession of cocaine. Case No. CR07-829. The jury found
petitioner guilty of the charge and recommended a sentence of
six years incarceration, and the court sentenced petitioner
in accordance with that recommendation.
direct appeal, petitioner's counsel filed a brief
pursuant to Anders v. California. 386 U.S. 738
(1967) in the case involving the receipt of stolen property,
assigning the sole error that the evidence was insufficient
to support the conviction. Counsel likewise challenged the
conviction of possession of cocaine solely on the basis of
the sufficiency of the evidence. The appeals were
consolidated, and the petitions for review of both
convictions were denied on September 2, 2009. Sawver v.
Commonwealth. R. No. 0393-09-1, 0394-09-1 (Va. Ct. App.
Sept. 2, 2009); Resp. Ex. B. After granting petitioner a
delayed appeal, the Supreme Court of Virginia refused a
petition for further review on April 8, 2013. Sawver v.
Commonwealth. R. No. 122059 (Va. Apr. 8, 2013); Resp.
April 7, 2014, petitioner filed an application for a state
writ of habeas corpus in the Supreme Court of Virginia,
arguing that his unspecified constitutional rights had been
violated, he was indigent and had no access to a law library,
his guilty plea was the result of ineffective representation
and trickery, the Commonwealth refused to honor the plea
agreement when he failed a lie detector test, and his right
to a speedy trial was violated. The petition was dismissed on
December 15, 2014. Sawver v. Davis. R. No. 140673
(Va. Dec. 15, 2014); Resp. Ex. E.
then turned to the federal forum and filed the instant
application for relief pursuant to §2254 on December 17,
2015. Because the petition was mistakenly mailed
to the Fourth Circuit of Appeals, it was not received by this
Court until December 29, 2015.
The Petition is Untimely
§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). In
the instant case, the Supreme Court of Virginia refused
petitioner's petition for review on direct appeal on
April 8, 2013. Resp. Ex. C. Therefore, the convictions became
final ninety (90) days later, on July 6, 2013, when the time
expired during which petitioner 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.
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. DiGudielmo. 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
convictions became final on July 7, 2013, 275 days passed
before he filed his petition for a state writ of habeas
corpus on April 7, 2014. The state petition was dismissed on
December 15, 2014, and an additional 367 days elapsed before
this federal proceeding was filed on December 17, 2015. When
these periods of unrolled time are combined they total 642
days, so the instant petition was filed 277 days beyond the
one-year limit. Accordingly, the petition is untimely
pursuant to § 2244(d).
No Showing of Actual Innocence
argues both on the face of the petition itself (Dkt. No. 1 at
15) and in his response to the Motion to Dismiss (Dkt. No.
11) that the untimeliness of this petition should be excused
because he is actually innocent of the crime of receiving
stolen property. In McOuiggin v. Perkins. 569 U.S.
___, 133 S.Ct. 1924 (2013), the Supreme Court held that a
convincing claim of actual innocence can overcome the
§2254(d) statute of limitations. However, as with an
actual innocence claim in the context of other procedural
defaults, the exception applies only in a "severely
confined category" - that is, cases in which reliable
new evidence shows that "it is more likely than not that
'no reasonable juror' would have convicted" the
petitioner had the evidence been available at trial.
Id., 133 S.Ct. at 1928, quoting Schlup v.
Delo. 513 U.S. 298, 329 (1995). It is readily apparent
that petitioner's argument in this case falls short of
that exacting standard.
plea colloquy on November 15, 2007, the prosecutor summarized
the evidence supporting the charge of receiving stolen
property as follows:
[I]f the Commonwealth were to proceed today with trial we
would have the testimony of LaTonya Johnson. She's the
owner, on November 30, 2006, the owner of a 1997 black Honda
Accord valued over $200. At that time she was residing ...