United States District Court, E.D. Virginia, Alexandria Division
George B. Hawkins, Petitioner,
Harold Clarke, Respondent.
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.
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.
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.
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,
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]
then turned to the federal forum and filed this application
for §2254 relief on December 5, 2016. See Dkt. No. 1,
"Certificate of Service." 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.
The Petition is Untimely
§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).
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.
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.
No Equitable Tolling
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).
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, ...