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Martinelly-Montano v. Clarke

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

February 8, 2018

CARLOS ABRAHAM MARTINELLY-MONTANO, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Petitioner, 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.

         I. STATEMENT OF THE CASE

         The 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.)

         After 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, [1] the 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).

         On 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).

         Respondent 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.

         II. RECOMMENDED FINDINGS OF FACT ...


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