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Hawkins v. Clarke

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

January 11, 2018

CHARLES HAWKINS, #1019653, Petitioner,
v.
HAROLD W. CLARKE, Director, V.D.O.C, Respondent.

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ROBERT J. KRASK UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. STATEMENT OF THE CASE

         Charles 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.[1] ECF No. 7-1. On May 22, 2013, the circuit court sentenced Hawkins to 18 years in prison with 3 years suspended. Id.

         Hawkins 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.

         Hawkins' 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 occurred."' Id.

         at 1. 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.

         Hawkins 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. § 8.01-654(A)(2).[2] Id.

         Hawkins 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.[3] 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.[4] 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.

         II. ANALYSIS

         A. Statute of Limitations

         Respondent 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).

         Hawkins' 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).

         Hawkins 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.[5]

         Hawkins 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.

         The 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 ...


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