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Hall v. Warden, USP Marion

United States District Court, W.D. Virginia, Roanoke Division

January 5, 2018

EARNEST BRADLEY HALL, Petitioner,
v.
WARDEN, USP MARION, Respondent.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski Chief United States District Judge

         Earnest Bradley Hall, a federal inmate[1] proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment by the Giles County Circuit Court. Respondent filed a motion to dismiss Hall's § 2254 petition, and Hall responded, making the matter ripe for disposition. After review of the record, the court concludes that Hall's petition is time-barred and procedurally defaulted without excuse, requiring the motion to dismiss to be granted.

         I. Background

         On June 5, 2006, the Giles County Circuit Court convicted Hall of three counts of carnal knowledge under Va. Code § 18.2-361, and sentenced him to ten years and twelve months in prison. Hall did not pursue postconviction review.

         On January 13, 2017, Hall filed the current § 2254 petition, alleging that his convictions were invalid because (1) § 18.2-361 (A) is facially unconstitutional under the Fourteenth Amendment and Lawrence v. Texas. 539 U.S. 558 (2003); and (2) § 18.2-361 is unconstitutional as applied to him.

         II. Time-Bar

         Under the Anti-terrorism Effective Death Penalty Act (AEDPA), a one-year period of limitation for federal habeas corpus runs 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.

28 U.S.C. § 2244(d)(1).

         A petitioner can "toll" the federal habeas statute of limitation in two ways: statutory tolling and equitable tolling. Statutory tolling occurs when a petitioner files a state habeas petition within the federal habeas limitation period. The federal habeas statute of limitation is then tolled for the duration of the state habeas proceeding. 28 U.S.C. § 2244(d)(2). Equitable tolling only occurs when a petitioner shows '"(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida. 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo. 544, U.S. 408, 418 (2005)).

         Hall did not pursue direct or collateral review; therefore, his federal habeas statute of limitations under § 2244(d) expired in 2007. Hall argues that his petition is timely because Lawrence and MacDonald v. Moose. 710 F.3d 154 (4th Or. 2013) stated a new constitutional rule and reset the statute of limitations under § 2244(d)(1)(C). However, neither case is availing. Lawrence had no effect on Hall's limitation period because the Supreme Court decided the case in 2003, three years before Hall's conviction. Moreover, even if the court accepts that Moose reset the federal ...


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