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Langhorne v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

November 21, 2018

DIATATION LANGHORNE, Petitioner,
v.
HAROLD CLARKE, Respondent.

          MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

         Diatation Langhorne, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment by the Fluvanna County Circuit Court. Langhorne's petition is successive and untimely. Therefore, it will be dismissed.

         I. Background

         Diatation Langhorne was convicted by a Fluvanna County Circuit Court of habitual offender status and felony eluding the police. On May 31, 2013, the circuit court entered a final order sentencing Langhorne to seven years in prison. He appealed, but the Court of Appeals of Virginia denied his petition. Thereafter, a three-judge panel affirmed the appellate court's denial. On September 2, 2014, the Supreme Court of Virginia refused review. On April 24, 2015, Langhorne moved to set aside his conviction, but the circuit court denied his motion on August 24, 2015. Langhorne did not appeal. On September 10, 2015, Langhorne filed a “Writ of Error Coram Nobis and Motion to Vacate, Set Aside and Declare Null and Void a Defendant's Judgment and Conviction” in the Fluvanna County Circuit Court. On January 13, 2016, the circuit court denied Langhorne's petition because he had not alleged any clerical error or error in fact. Langhorne appealed, but on December 15, 2016, the Supreme Court of Virginia affirmed the circuit court.

         On January 3, 2017, Langhorne filed a federal habeas petition regarding these convictions. On October 23, 2017, this Court dismissed the petition with prejudice as procedurally barred, and denied a certificate of appealability. See generally, Langhorne v. Warden, No. 7:17CV00071, 2017 WL 4783295 (W.D. Va. Oct. 23, 2017).

         On October 15, 2018, Langhorne filed the current petition, attacking only his habitual offender conviction. Langhorne alleges a miscarriage of justice and asserts two claims:

(1) “Counsel failed/refused to raise a meritorious defense to the charge of Habitual Offender on the grounds that Langhorne has never been adjudicated a Habitual Offender by a court of law, as required by due process of law”; and
(2) “Counsel refused/failed to object, and move the court for a mistrial, on the grounds that the Commonwealth Attorney falsely testified to the jury and court about facts and evidence not in the record.”

Pet. 6, 7.

         II. Successive Petition

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) strictly limits the consideration of second or successive habeas petitions. See In re Williams, 444 F.3d 233, 235 (4th Cir. 2006), abrogated on other grounds by In re Gray, 850 F.3d 139 (4th Cir. 2017). Generally, the court must dismiss with prejudice any second or successive claims previously adjudicated on the merits. 28 U.S.C. § 2244(b); see also Villanueva v. United States, 346 F.3d 55, 60 (2d Cir. 2003). Additionally, a petitioner cannot bring “new” claims in a second or successive petition unless the applicant receives permission from the appropriate court of appeals by showing that (1) the claim relies on a new, previously unavailable, and retroactively applied rule of constitutional or federal law, or (2) if the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and the facts underlying the claim, if proven, would sufficiently establish by clear and convincing evidence that no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b).

         However, “not every numerically second petition is a ‘second or successive' petition within the meaning of the AEDPA.” In re Williams, 444 F.3d at 235. A petition is not considered successive if: (1) it is first dismissed without prejudice on technical grounds, such as failure to exhaust state remedies, (2) a claim was not ripe at the time of the first petition, such as when a judgment intervenes between the two habeas petitions and the new application challenges the new judgment, or when a petitioner seeks to file a Ford v. Wainwright, 477 U.S. 399 (1986) mental incompetency claim, or (3) when a prisoner uses a motion pursuant to 28 U.S.C. § 2255 or § 2254 to regain a right to appeal. See, e.g., In re Williams, 444 F.3d at 235 (discussing technical grounds); In re Gray, 850 F.3d at 142 (discussing new petition for intervening judgment); Panetti v. Quarterman, 551 U.S. 930 (2007) (discussing Ford motions for incompetence); In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999) (discussing petitioner seeking to regain a right to appeal under § 2255); Evans v. Smith, 220 F.3d 306, 323-25 (4th Cir. 2000) (exhaustive review of all exceptions).

         Langhorne previously filed a § 2254 petition, and this Court dismissed that petition with prejudice and denied a certificate of appealability. Langhorne's current petition does not satisfy any of the exceptions to the successive petition bar, and he has not received authorization from the Fourth Circuit Court of Appeals to file a second federal habeas petition as required by 28 U.S.C. § 2244(b). Therefore, Langhorne's petition is procedurally barred as successive.

         III. Statute ...


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