United States District Court, E.D. Virginia, Norfolk Division
MAGISTRATE JUDGE'S REPORT AND
Carlos Martinelly-Montano, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 11,
2017 (EFC No. 1). On February 3, 2012, Prince William County
Circuit Court convicted Martinelly-Montano of one count of
felony murder and five other offenses following a fatal car
accident resulting from his third DWI within five years. The
court sentenced Martinelly-Montano to six concurrent
sentences totaling twenty years of active incarceration.
Martinelly-Montano's federal habeas corpus petition
asserts seven claims related to the alleged ineffective
assistance of his trial counsel. This matter was referred to
the undersigned United States Magistrate Judge pursuant to 28
U.S.C. §§ 636(b)(1)(B) and (C), and Rule 72 (b) of
the Federal Rules of Civil Procedure for a Report and
Recommendation. Because Martinelly-Montano's federal
petition is time-barred and Martinelly-Montano has not stated
any basis to toll the limitations period or excuse his
untimely filing, the undersigned recommends that the Court
dismiss the petition.
STATEMENT OF THE CASE
Prince William County Circuit Court convicted
Martinelly-Montano of one count of felony murder, two counts
of maiming resulting from driving while intoxicated, driving
on a suspended or revoked license, a third DWI within five
years, and involuntary manslaughter. The court sentenced him
to forty years of incarceration, with various sentences to be
served concurrently, resulting in twenty years of active
incarceration. Martinelly-Montano appealed his conviction to
the Court of Appeals of Virginia, which affirmed the Circuit
Court's decision on March 26, 2013. The Supreme Court of
Virginia refused to hear Martinelly-Montano's appeal of
the Court of Appeals' decision on April 18, 2014, and
refused his petition for a rehearing on June 13, 2014.
Martinelly-Montano then filed a petition for a writ of
certiorari with the Supreme Court of the United States, which
was denied on January 12, 2015. Martinelly-Montano v.
Virginia, 135 S.Ct. 987 (Jan. 12, 2015) (Mem.)
exhausting his state and federal appeals, Martinelly-Montano
filed a state habeas petition with the Prince William County
Circuit Court. While the record is unclear on the exact date
Martinelly-Montano submitted his state habeas petition,
Prince William County Circuit Court expressly denied it as
untimely in a final order dated August 10, 2016.
Martinelly Montano v. Virginia, No. CL15-4946 (Va.
Cir. Ct. Aug. 10, 2016) (pp. 59-61 of ECF No. 1) . On October
13, 2016, Martinelly-Montano filed a habeas appeal in the
Supreme Court of Virginia, which the court denied in part and
procedurally dismissed in part on March 18, 2015.
Martinelly v. Clarke, No. 161476 (Va. May 18, 2017)
(p. 58 of ECF No. 1).
March 13, 2017, Martinelly-Montano filed his current federal
Petition under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody. His federal petition
raises seven claims for relief all related to the alleged
ineffective assistance of counsel. Specifically,
Martinelly-Montano claims his trial counsel was ineffective
by failing to
A. suppress statements Martinelly-Montano made to police
while in the hospital;
B. move for a change of venue;
C. use an accident report prepared for trial;
D. require the Commonwealth of Virginia to uphold a
"verbal plea offer";
E. utilize Martinelly-Montano's mental health history to
rebut mens rea and malice requirements;
F. advise against Martinelly-Montano pleading guilty to the
DWI charge with the knowledge the Commonwealth of Virginia
would seek felony murder charges; and
G. attack the conviction due to insufficient evidence. Pet.
at 22-23 (ECF No. 1).
filed a Rule 5 Answer and Motion to Dismiss (ECF No. 11) and
an accompanying Brief in Support of Motion to Dismiss (ECF
No. 13). Respondent argues that Martinelly-Montano's
petition is untimely and no tolling exception applies. Mot.
Dismiss at 2-3 (ECF No. 13). Martinelly-Montano disputes the
timeline presented by Respondent and seeks equitable tolling.
Resp. Mot. Dismiss (ECF No. 15). As set forth in detail
below, this report concludes Martinelly-Montano's federal
petition is time-barred and his pleadings do not allege any
basis to overcome the time bar to obtain federal habeas
review of his conviction.
RECOMMENDED FINDINGS OF FACT ...