United States District Court, E.D. Virginia, Richmond Division
MILTON N. WILLIAMS, Petitioner,
COMMONWEALTH OF VIRGINIA, et al., Respondent.
Roderick C. Young United States Magistrate Judge.
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.
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.
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,
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
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,
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.
November 9, 2015, Williams filed his § 2254 Petition
with this Court. 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.)
STATUTE OF LIMITATIONS
Statute of Limitations
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
28 U.S.C. § 2244(d).
Commencement and Running of the Statute of
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.
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.
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.
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
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 § 2244(d)(2), tolled the one-year limitation
period for nearly three and a half years. Because Respondent
fails to address ...