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Hawkins v. Clarke

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

February 1, 2018

George B. Hawkins, Petitioner,
v.
Harold Clarke, Respondent.

          MEMORANDUM OPINION

         George B. Hawkins, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction of multiple offenses in the Circuit Court of the City of Richmond. The matter is now before the Court on respondent's Motion to Dismiss the petition, to which petitioner has filed an opposition. After careful consideration, for the reasons which follow, the Motion to Dismiss must be granted.

         I. Background

         Following a jury trial, Hawkins was convicted of attempted murder, aggravated malicious wounding, possession of cocaine with intent to distribute, and two counts of use of a firearm in the commission of a felony. By a final order entered on August 19, 2010, he was sentenced to 78 years incarceration with 63 years suspended. Case Nos. CR10-F-2318, -2320, -2323, -2324, and -2328.

         Hawkins was granted a belated direct appeal by the Court of Appeals of Virginia, which ultimately refused the petition for appeal on October 9, 2012. Hawkins v. Commonwealth, R. No. 0393-12-2 (Va. Ct. App. Oct. 9, 2012). The Supreme Court of Virginia refused Hawkins' application for further review on August 20, 2013. Hawkins v. Commonwealth, R. No. 130751 (Va. Aug. 20, 2013). [Dkt. No. 18, Ex. 3][1]

         On August 18, 2014, Hawkins timely filed a pro se petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising the same claims he makes in this federal petition. The petition was dismissed on July 15, 2015. Hawkins v. Clarke, R. No 141252 (Va. July 15, 2015). [Dkt. No. 18, Ex. 1]

         On April 21, 2016, Hawkins filed a second pro se petition for state habeas corpus relief, arguing that he was denied effective assistance of counsel in the earlier habeas corpus proceeding because an attorney with whom he had consulted did not file a motion for rehearing after the petition was dismissed. The Supreme Court of Virginia dismissed the petition on October 14, 2016, on the holding that allegations that a petitioner received ineffective assistance in an earlier habeas corpus proceeding are not cognizable in habeas corpus. Hawkins v. Clarke, R. No. 160762 (Va. Oct. 14, 2016). [Dkt. No. 18, Ex. 2]

         Hawkins then turned to the federal forum and filed this application for §2254 relief on December 5, 2016. See Dkt. No. 1, "Certificate of Service."[2] In it, he raises claims that he was denied due process when a prosecution witness was allowed to testify falsely, and that he received ineffective assistance of counsel for three reasons. On April 21, 2017, respondent filed a Motion to Dismiss the petition accompanied by a supporting memorandum of law, and supplied petitioner with the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1978) and Local Rule 7(K). [Dkt. No. 6-9] Hawkins subsequently submitted a Brief in Opposition to the Motion to Dismiss. [Dkt. No. 12] Accordingly, this matter is now ripe for disposition.

         II. The Petition is Untimely

         A §2254 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 Hawkins' petition for review on direct appeal on August 20, 2013. Therefore, the conviction became final ninety (90) days later, on November 18, 2013, 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 § 2254(d) limitations period, a court must exclude the time during which properly-filed state collateral proceedings pursued by the petitioner were pending. See 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 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, the limitations period ran for 273 days before Hawkins filed his first state habeas petition on August 18, 2014. That petition was denied and dismissed on July 15, 2015, and the limitations period thereafter ran unchecked for an additional 279 days until Hawkins filed his second state habeas application on April 2, 2016. Since by then a total of 452 days of untolled time had elapsed since Hawkins' conviction became final, the limitations period expired prior to the date the second state habeas action was filed. Accordingly, the second state proceeding 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.") Thus, when this federal petition was filed on December 5, 2016, it was time-barred.

         III. No Equitable Tolling

         In the Memorandum of Law Hawkins has incorporated in the initial petition [Dkt. No. 1] and again in his Brief in Opposition to Motion to Dismiss [Dkt. No. 12], Hawkins argues that the limitations period should be equitably tolled in his case because he received ineffective assistance of counsel in his first state habeas corpus proceeding. The United States Supreme Court has established that equitable tolling is applicable to the § 2244(d)(2) limitations period. See Holland v. Florida, 560 U.S. 631 (2010) ("Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244 (d) is subject to equitable tolling in appropriate cases.")- To qualify for equitable tolling, a petitioner must demonstrate both (1) that he had been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Id. at 649, citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A petitioner asserting equitable tolling "'bears a strong burden to show specific facts'" that demonstrate fulfillment of both elements of the test. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 12304, 1307 (11th Cir. 2008)). The petitioner generally is obliged to specify the steps he took in diligently pursuing his federal claim. Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). In addition, the petitioner must "demonstrate a causal relationship between the extraordinary circumstance on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the circumstances." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). It is widely recognized that equitable tolling is to be applied only infrequently. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).

         Here, Hawkins contends that the lateness of the instant petition should be excused because an attorney who assisted him in his first state habeas corpus action, Brent Jackson, failed to file a motion for rehearing on petitioner's behalf after the petition was denied. [Dkt. No. 1, Memo, ...


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