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McMillian v. Clarke

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

December 10, 2017

Derreak Lamont McMillian, Petitioner,
v.
Harold Clarke, Respondent.

          MEMORANDUM OPINION

          ANTHONY J. TRENGA, UNITED STATES DISTRICT JUDGE.

         Derreak Lamont McMillian, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of convictions entered in the Circuit Court of the City of Chesapeake. The matter is before the Court on the respondent's Motion to Dismiss the petition.

         I. Background

         In December, 2009, McMillian was convicted following a jury trial of murder, grand larceny, and use of a firearm in the commission of a felony. He received an aggregate sentence of 68 years imprisonment with ten years suspended. Case Nos. CR07-2291, -2292 and -2310. The convictions were affirmed in an unpublished memorandum opinion on March 1, 2011. McMillian v. Commonwealth. R. No. 0455-10-1 (Va. Ct. App. Mar. 1, 2011). On August 26, 2011, the Supreme Court of Virginia refused McMillian's petition for further appeal. McMillian v. Commonwealth. R. No. 110592 (Va. Aug. 26, 2011).

         On May 8, 2005, McMillian filed a petition for unspecified relief in the Circuit Court of the City of Chesapeake. Case No. CL15001143-00. It appears from the Virginia Courts Case Information System that the petition may still remain pending, as the website does not indicate its disposition. On August 21, 2015, McMillian also filed a complaint for unspecified relief in the same court. Case No. 15001944-00. In that instance judgment was entered for the defendant on October 27, 2015, and McMillian filed an appeal on November 18, 2015.

         McMillian filed the instant petition for habeas corpus relief on February 17, 2017. [1] In it, he makes the following claims:

1. The trial court abused its discretion by admitting evidence of other crimes.
2. He was the victim of prosecutorial misconduct when the Commonwealth proffered false information to the trial court regarding other crimes he allegedly committed.
3. When "the prejudicial presentment of [evidence of] other crimes being committed" is discounted, the remaining evidence is insufficient to sustain the convictions.

         On May 30, 2017, respondent filed a Rule 5 Response and a Motion to Dismiss the petition with a supporting brief, and provided petitioner with the notice required by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. [Dkt. No. 16 -19] Petitioner subsequently filed a reply in opposition. [Dkt. No. 20] Accordingly, this matter is ripe for disposition.

         II. Analysis

         Respondent advances several arguments regarding the adjudication of this petition, all of which are meritorious. The Court finds that the threshold and hence dispositive consideration is fact that the petition is time-barred.

         A 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 this case, the Supreme Court of Virginia refused McMillian's petition for review on direct appeal on August 26, 2011. McMillian v. Commonwealth. R. No. 110592. Therefore, the conviction became final ninety (90) days later, on November 24, 2011, when the time expired during which he 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 generally must exclude the time during which properly-filed state collateral proceedings pursued by a petitioner were pending. See 28 U.S.C. § 2244(d)(2); Pace v. DiGuslielmo. 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, however, McMillian did not commence postconviction proceedings until August and October of 2015, when he filed the two actions in the trial court described above. Since by then well over three years had elapsed since his convictions had become final, the pendency of those state actions could no longer toll the limitations period. See Ferguson v. Palmateer.321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); Webster v. Moore. 199 F.3d 1256, 1259 (11th Cir. 2000) (holding that a state postconviction motion filed after expiration of the limitations period cannot toll the period, because there is no period remaining to be tolled); Rashid v. Khulmann. 991 F.Supp. 254, 259 (S.D.N.Y. 1998) ("Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations.")[2] ...


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