United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. KRASK UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Charles Hawkins' pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, and the respondent's motion to
dismiss. This matter was referred to the United States
Magistrate Judge pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B) and (C) and Rule 72 of the Rules of the
United States District Court for the Eastern District of
Virginia. For the following reasons, the Court
RECOMMENDS that respondent's motion to
dismiss, ECF No. 5, be GRANTED.
STATEMENT OF THE CASE
Hawkins ("Hawkins") is an inmate currently confined
at the Deerfield Correctional Center of the Virginia
Department of Corrections. ECF No. 1 at 1. Hawkins waived his
right to a trial by jury and, following a bench trial, was
convicted in the Circuit Court for the City of Portsmouth on
February 14, 2013, ECF No. 1 at 22, of one count of malicious
wounding, one count of using a firearm during the commission
of a felony, and one count of possession of a firearm by a
convicted felon. ECF No. 7-1. On May 22, 2013, the circuit
court sentenced Hawkins to 18 years in prison with 3 years
appealed his conviction to the Court of Appeals of Virginia.
ECF No. 7-2. The court of appeals summarized the evidence in
the case as follows:
[D]uring the early morning hours on January 27, 2012,
[Hawkins] was at a gathering with the victim, [Shawn Moye, or
"Moye"], a female, [Tiffany Gatson, or
"Gatson"], and another male, ["Cousin
V"], when an altercation began. [Moye] attempted to
intervene, and [Cousin V] produced a gun. As [Moye] and
others were leaving, [Cousin V] threatened [Moye] with the
weapon. [Moye] ran from the scene, heard a gunshot, and
realized that he had been shot in the back.
[Gatson] testified that she saw [Hawkins] with a gun as she
and [Moye] were leaving the residence. [Cousin V] instructed
[Hawkins] to shoot, and [Hawkins] complied. [Gatson] saw
[Hawkins] fire the weapon at [Moye].
The police detective who investigated the shooting explained
that [Moye] was initially uncooperative with the police.
[Gatson] was willing to speak with the officers, and, shortly
after the incident, she specifically stated that it was a man
with [Cousin V] who shot [Moye]. She later identified the
shooter as [Hawkins]. However, in her 911 call, [Gatson]
seemed to suggest that [Cousin V] had shot [Moye].
Without objection, the Commonwealth introduced a written
statement from [Moye], produced approximately two months
after the shooting. In the statement, [Moye] recounted the
events of the night and stated that [Hawkins] was the person
who shot him.
ECF No. 7-2.
appeal argued first, '"[t]he trial court erred in
overruling [his] motions to strike and in finding the
evidence sufficient to prove that [he] was the person who
shot [the victim], '" and second, that
"'[t]he trial court erred in allowing the
Commonwealth to introduce the written statement given by the
victim to the police nearly two months after the offenses
On December 30, 2013, the court of appeals rejected both
arguments, finding the "first argument without merit and
[the] second argument waived." Id. Hawkins
filed a request for a three-judge panel, ECF No. 1 at 23,
and, on April 14, 2014, a three-judge panel of the court of
appeals again denied Hawkins' petition for appeal. ECF
No. 7-2 at 8. On October 31, 2014, the Supreme Court of
Virginia refused Hawkins' appeal. ECF No. 7-3.
filed a petition for a writ of habeas corpus in the Supreme
Court of Virginia on March 30, 2016. ECF No. 7-4. On June 17,
2016, the Supreme Court of Virginia dismissed the habeas
petition because it was not filed within one year from that
court's refusal of Hawkins' appeal on October 31,
2014, and was thus untimely under Va. Code Ann. §
certified that he placed a federal petition for a writ of
habeas corpus in the prison mailing system on November 21,
2016. ECF No. 1 at 15. That petition was filed in this Court
on December 16, 2016, raising 19 different grounds supporting
issuance of the writ. ECF No. 1 at 1, 35-56. On April 12, 2017,
the respondent filed an answer to the petition pursuant to
Rule 5 of the Rules Governing Section 2254 Cases in the
United States District Courts and a motion to dismiss the
petition, along with a supporting memorandum. ECF Nos. 5-7. On
May 30, 2017, after receiving an extension of time, ECF No.
10, Hawkins filed a response in opposition to the motion to
dismiss. ECF No. 12.
Statute of Limitations
first argues that Hawkins' claims are barred by the
applicable statute of limitations. ECF No. 7 at 5-7.
Hawkins' claims are governed by 28 U.S.C. § 2244(d),
part of the Anti-Terrorism and Effective Death Penalty Act
("AEDPA"), which provides, in pertinent part, that
a one-year statute of limitations begins to run from
"the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review." 28 U.S.C. § 2244(d)(1)(A).
This time period tolls when "a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending." 28 U.S.C. § 2244(d)(2).
petition was untimely filed. The Supreme Court of Virginia
refused Hawkins' direct appeal on October 31, 2014. ECF
No. 7-3. Hawkins had 90 days from entry of that final
judgment to file a writ of certiorari to the United States
Supreme Court. See Sup. Ct. R. 13(1). He did not do
so, and his conviction thus became final on January 29, 2015.
Under section 2244(d), he had until January 29, 2016 to file
his federal habeas petition. See 28 U.S.C. §
2244(d)(1)(A). Instead, he placed his petition in the prison
mailing system on November 21, 2016, over nine months late.
ECF No. 1 at 15; see Lewis v. Richmond City Police
Dep't, 947 F.2d 733, 735 (4th Cir. 1991) (a filing
by an unrepresented prisoner is deemed submitted when it is
delivered to prison officials for mailing).
is not entitled to the statutory tolling provision of 28
U.S.C. § 2244(d)(2), because his state habeas petition
was not "a properly filed application for State . . .
review" within the meaning of that code provision.
"When a postconviction petition is untimely under state
law, 'that [is] the end of the matter' for purposes
of § 2244(d)(2)." Pace v. DiGuglielmo, 544
U.S. 408, 414 (2005); see also Patterson v. Dir., Va.
Dept. of Con:, 36 F.Supp.2d 317, 319-20 (E.D. Va. 1999)
(holding that a properly filed petition is "'one
submitted according to the state's procedural
requirements, such as rules governing time and place of
filing'") (quoting Lovasz v. Vaughn, 134
F.3d 146, 147 (3d Cir. 1998)). Here, the Supreme Court of
Virginia refused Hawkins' petition as untimely pursuant
to state law, specifically Va. Code Ann. §
8.01-654(A)(2). Thus, Hawkins' state petition was
improper under state procedural law and does not toll the
federal statute of limitations.
attempts to overcome his late filing by arguing that he is
making a gateway claim of actual innocence under Schlup
v. Delo, 513 U.S. 298 (1995). The Supreme Court has
recognized that "actual innocence, if proved, serves as
a gateway through which a prisoner may pass" to bring
claims after the statute of limitations expires.
McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013).
This exception to the statute of limitations "applies to
a severely confined category: cases in which new evidence
shows 'it is more likely than not that no reasonable
juror would have convicted [the petitioner].'"
McQuiggin, 133 S.Ct. at 1933 (quoting
Schlup, 513 U.S. at 329). More specifically, the
exception requires "new reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence- that was not
presented at trial." Schlup, 513 U.S. at 324. A
habeas petitioner's '"[l]ate-offered'
testimony is not 'new evidence' if the substance of
such testimony was available at [the petitioner's
trial]." Lewis v. Clarke, No. 2:13cv549, 2014
WL 2090563, at *6 (E.D. Va. May 19, 2014) (citing Hubbard
v. Pinchak, 378 F.3d 333, 340-41 (3d Cir. 2004)). Nor is
evidence which is a mere "repackaging of the record as
presented at trial" considered "new" evidence
which may properly support a claim of actual innocence.
Hubbard, 378 F.3d at 341. If the petitioner provides
the court with reliable, newly discovered evidence, then the
court weighs the new evidence in light of the previous
evidence, whether admissible under the rules of evidence or
not, and makes a "probabilistic determination about what
reasonable, properly instructed jurors would do."
Schlup, 513 U.S. at 299.
Schlup standard is an exceedingly high burden to
satisfy and thus only permits review in
"extraordinary" cases. House v. Bell, 547
U.S. 518, 538 (2006); see also Schlup, 513 U.S. at
327-29. Further, a petitioner's actual innocence claim
'"does not by itself provide a basis for
relief.'" Teleguz v. Pearson,689 F.3d 322,
328 (4th Cir. 2012) (quoting Coleman v. Hardy, 628
F.3d 314, 318 (7th Cir. 2010)). Instead, a petitioner's
"claim of innocence is ... 'a gateway through which
a habeas petitioner must pass to have his otherwise barred