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Sawyer v. Kiser

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

February 15, 2017

Javon L. Sawyer, Petitioner,
v.
Warden J. Kiser, Respondent.

          MEMORANDUM OPINION

          Liam O'Grady United States District Judge.

         THIS 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.

         I. Procedural History

         On 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.

         On 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.[1] 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. Ex. C.

         On 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.

         Petitioner then turned to the federal forum and filed the instant application for relief pursuant to §2254 on December 17, 2015.[2] Because the petition was mistakenly mailed to the Fourth Circuit of Appeals, it was not received by this Court until December 29, 2015.

         II. The Petition is Untimely

         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). 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.

         In 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).

         III. No Showing of Actual Innocence

         Petitioner 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.[3] 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.

         At the 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 ...

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