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Williams v. Commonwealth

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

March 16, 2017

MILTON N. WILLIAMS, Petitioner,
v.
COMMONWEALTH OF VIRGINIA, et al., Respondent.

          MEMORANDUM OPINION

          Roderick C. Young United States Magistrate Judge.

         Milton N. Williams, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 9) challenging his convictions in the Circuit Court of the City of Hampton, Virginia ("Circuit Court"). Respondent moves to dismiss primarily on the ground that, inter alia, the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. Williams has responded. While the Court does not find the § 2254 Petition barred by the statute of limitations, for the reasons set forth below, the Motion to Dismiss (ECF No. 13) will be GRANTED.

         I. PROCEDURAL HISTORY

         Williams pled guilty to object sexual penetration and sexual battery. On June 22, 2012, Williams was sentenced to twenty years of incarceration, with seven years and five months suspended, on the object sexual penetration count, and to twelve months of incarceration, with all twelve months suspended, on the sexual battery count. (See ECF No. 15-3, at 1.) Williams did not appeal his convictions.

         On August 7, 2012, Williams filed a letter asking the Circuit Court to reconsider his sentence. Letter \-$, Williams v. Commonwealth, No. CR11-1088 (Va. Cir. Ct. filed Aug. 7, 2012). The Circuit Court construed the letter as a motion for reconsideration and directed a response from the Commonwealth. Letter 1, Williams, No. CR11-1088 (Va. Cir. Ct. Aug. 10, 2012). The Circuit Court did not deny the motion for reconsideration until March 14, 2016. Williams, No. CR11-1088 (Va. Cir. Ct. Mar. 14, 2016).

         On August 7, 2013, Williams filed a petition for a writ of habeas corpus in the Circuit Court. Petition for Writ of Habeas Corpus at 6, Williams v. Commonwealth, No. CL13-2095 (Va. Cir. Ct. filed Aug. 7, 2013) ("State Habeas Petition"). In that petition, Williams raised the following claims for relief:

Claim a: "Involuntar[y] plea of guilty" because his counsel and prosecutor told him he would receive a greater sentence if he did not plead guilty and created an unfair pretrial atmosphere. Id. at 4; (ECF No. 15-3, at 2.)
Claim b: "Counsel fail[ed] to introduce mitigating [DNA] evidence." State Habeas Pet. 4.
Claim c: Counsel "violat[ed Williams's] right to have favorable witnesses testify." Id

         On June 4, 2014, the Circuit Court denied the petition. (ECF No. 15-3, at 11.) On September 9, 2014, Williams filed a petition for appeal in the Supreme Court of Virginia. Petition for Appeal at 1, Williams v. Commonwealth, No. 141341 (Va. Sept. 9, 2014). On June 26, 2015, the Supreme Court of Virginia denied Williams's petition, and on October 15, 2015, the Supreme Court of Virginia denied his petition for rehearing. Williams, No. 141341, at 1 (Va. June 26, 2015); Williams, No. 141341, at 1 (Va. Oct. 15, 2015).

         On December 8, 2014, during the pendency of his collateral appeal, Williams filed a second petition for a writ of habeas corpus in the Circuit Court. See Petition for Writ of Habeas Corpus at 6, Williams v. Commonwealth, No. CL14-2368 (Va. filed Dec. 8, 2014). On March 5, 2015, the Circuit Court dismissed the petition, inter alia, as barred by the statute of limitations and as successive pursuant to sections 8.01-654(A)(2) and (B)(2) of the Virginia Code. See Williams v. Commonwealth, No. CL14-2368, at 1-4 (Va. Cir. Ct. Mar. 5, 2015) (citations omitted). The Supreme Court of Virginia refused Williams's petition for appeal.[1]

         On November 9, 2015, Williams filed his § 2254 Petition with this Court.[2] In his § 2254 Petition, Williams asserts the following claims for relief:

Claim One: (a) "Involuntary plea of guilty." (§ 2254 Pet. 5.)
(b) The Circuit Court failed to act when Williams wanted to file a complaint against his attorney. (Id. at 5-6.)
Claim Two: "Counsel fail[ed] to introduce mitigating [DNA] evidence." (Id. at 10.)
Claim Three: "Ineffective assistance of counsel" because counsel failed to present mitigating evidence or put on a defense case. (Id. at 12-13.)
Claim Four: Counsel violated Williams's "[r]ight to have favorable witness[es]" during sentencing. (Id. at 15.)
Claim Five: Counsel "fail[ed] to inform Petitioner of the right to appeal." (Id. at 19.)

         II. STATUTE OF LIMITATIONS

         A. Statute of Limitations

         Respondent contends, inter alia, that the federal statute of limitations bars Williams's claims. Section 101 of the Antiterrorism and Effective Death Penalty Act ("AFJDPA") amended 28 U.S.C. § 2244 to establish a one-year period of limitation for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. Specifically, 28 U.S.C. § 2244(d) now reads:

1. A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(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.
2. The time during which a properly filed application for State postconviction 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).

         B. Commencement and Running of the Statute of Limitations

         Williams's judgment became final on Monday, July 23, 2012, when the time to file a direct appeal expired. See Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) ("[T]he one-year limitation period begins running when direct review of the state conviction is completed or when the time for seeking direct review has expired . . . ." (citing 28 U.S.C. § 2244(d)(1)(A))); Va. Sup. Ct. R. 5A:6(a) (providing no appeal allowed unless notice of appeal filed within thirty days of final judgment). The limitation period began to run the following day, on July 24, 2012.

         Respondent argues that because Williams failed to file any state or federal petition by July 24, 2013, his federal petition is untimely. Respondent, however, fails to address fully Williams's potential entitlement to statutory tolling.

         C. Statutory Tolling

         Previously, the United States Court of Appeals for the Fourth Circuit held that "under the plain language of section 2244(d)(2) ... the applicable one-year statute of limitations is tolled only for state collateral, post-conviction review." Walkowiak v. Haines, 272 F.3d 234, 236 (4th Cir. 2001) (citation and emphasis omitted). The Fourth Circuit noted that "the term 'collateral review' refers to a proceeding separate and distinct from that in which the original judgment was rendered, and in which the petitioner challenges the legality of the original judgment." Id. at 237 (citation omitted). The Fourth Circuit concluded that a motion brought under Rule 35(b) of the West Virginia Rules of Criminal Procedure did not satisfy the definition of collateral review because it asked the same judge who presided over the movant's case to modify the sentence imposed. Id. at 237-38.

         In 2011, however, the Supreme Court abrogated the Fourth Circuit's decision in Walkowiak. See Wall v. Kholi, 562 U.S. 545, 559 (2011). In Kholi, the Supreme Court defined collateral review of a judgment to mean "judicial reexamination of a judgment or claim in a proceeding outside of the direct review process." Id. at 553. Applying this definition, the Court concluded that a motion to reduce sentence, brought under Rule 35 of the Rhode Island Rules of Criminal Procedure, was "an application for 'collateral review' that triggers AEDPA's tolling provision." Id. at 556.

         Respondent fails to address the effect on the federal limitation period of Williams's letter motion for reconsideration that was filed on August 7, 2012 and was not denied by the Circuit Court until March 14, 2016. Under the Kholi court's definition of "collateral review, " Williams's letter motion for reconsideration of sentence may constitute a collateral application for relief that, pursuant to ยง 2244(d)(2), tolled the one-year limitation period for nearly three and a half years. Because Respondent fails to address ...


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