United States District Court, E.D. Virginia, Alexandria Division
Anthony J. Trenga United States District Judge
White, a Virginia inmate proceeding pro se, has filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging the constitutionality of his 1997
conviction for second degree murder entered on a plea of
guilty in the Norfolk Circuit Court. Case No. CR96-002159.
The matter presently is before the Court for consideration of
the Amended Petition, which is the operative petition in the
action [Dkt. No 8]. Also before the Court is petitioner's
Motion for Objection [Dkt. No. 15], which petitioner filed in
response to the Court's Order directing him to show cause
why the Amended Petition should not be dismissed as
time-barred, and the petitioner's Affidavit of Bias
and/or Prejudice [Dkt. No. 19], which the Court construes as
a Motion for Recusal. For the reasons which follow,
petitioner's Motion for Objection will be denied; the
petition will be dismissed, with prejudice, as time-barred;
and the request for recusal will be denied.
Amended Petition and Motion for Objection
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 the instant
case, White entered a guilty plea and was convicted of second
degree murder on October 9, 1997; he received a sentence of
40 years incarceration with 10 years suspended. Dkt. No. 8 at
1. Because no direct appeal was filed, the conviction became
final and the limitations clock began to run on November 8,
1997, the date on which the period within which White could
have appealed the trial court's decision to the Court of
Appeals of Virginia expired. See Va. Sup. Ct. R.
calculating the one-year § 2244 limitations period, a
court must exclude the time during which properly-filed state
collateral proceedings pursued by 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, however, White sought no postconviction relief until
March 23, 2001, when he filed a Motion to Vacate in the trial
court. Dkt. No. 8 at 4. Because by then over three years had
elapsed since the conviction became final, the pendency of a
state action 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."). Accordingly, this petition is untimely
under § 2244(d), unless White can establish that the
statute of limitations does not apply or should otherwise be
tolled. See Hill v. Braxton, 277 F.3d 701,
707 (4th Cir. 2002) (requiring notice and the opportunity to
respond before a sua sponte dismissal under
Court entered an Order on May 16, 2018, advising White that
his habeas application appeared to be time-barred and
allowing him 30 days within which to show cause why it should
not be dismissed on that basis. [Dkt. No. 11] The Court noted
that White had argued in the amended petition that "the
factual predicate [for his claim] was received on
3/20/15," when White discovered that Robert Glenn Ford,
the lead detective responsible for investigating his case,
had been prosecuted for corruption. Because the documents
White submitted in support of that argument indicated that
Ford was convicted in the Norfolk District Court on October
27, 2010 and sentenced on February 25, 2011 [ Dkt. No. 8,
Art. 2], White was prompted to explain why the information
upon which he based his claim of entitlement to statutory
tolling could not have been discovered through the exercise
of due diligence prior to March 20, 2015. Id.;
see Pace, 544 at 418 (to qualify for
equitable tolling, a petitioner must demonstrate both that
(1) he had been pursuing his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented
7, 2018, in apparent response to the Court's Order, White
filed a Motion for Independent Investigation, Motion for
Counsel, and Motion for Objection [Dkt. No. 13-15]. By an
Order entered July 3, 2018, the Motions for Counsel and for
an Independent Investigation were denied without prejudice
[Dkt. No. 17]. As to the Motion for Objection, White alleged
that between April 17 and 24, 2018, he placed copies of a
federal habeas corpus petition addressed to this court's
Clerk's Office and to the Attorney General of Virginia
into the Greensville Correctional Center's mailing system
[Dkt. No. 17]. White asserted that on May 4, 2018 the
documents were returned "censored, tampered with an
stripped of U.S. postage," and he argued that prison
employees thus had violated the Virginia Department of
Corrections' Operating Procedures for legal
correspondence. White was allowed 21 days within which to
specify what documents had been tampered with, to explain the
manner in which they had been altered, and to provide copies
of the original documents that could be compared to those on
the official docket [Dkt. No. 17 at 2].
response to the foregoing Order, White wrote a letter to the
Court [Dkt. No. 18] in which he appears to expand upon his
statement in the Amended Petition that the limitations period
should be deemed to have been tolled because he did not learn
until 3/20/15 that Detective Ford was prosecuted for
corruption. Within that letter White reiterates his
contention that Robert Glenn Ford, the lead detective in his
prosecution, "committed crimes." Id. at 4.
Without additional detail, he also asserts that "counsel
for the state of Va. committed active falsehoods and fraud on
the court." Id. at 4-5. He alleges that the
prosecutor and Detective Ford "created a narrative and
actual convictions of two deaths for one person. They both
knew it and played this narrative out in a court of
law." Id. at 5. White contends that his counsel
"filed a discovery" and the prosecutor
"refused to turn this over," and he concludes that
he can prove his allegations "by witness by the F.B.I,
in Mr. Ford['s] case... "some" are willing to
testify in court that they had criminal dealings with Mr.
Ford." Id. He then sets out the terms of a
settlement proposal which would include the vacation of his
sentence and a "a new retroactive overhaul of the legal
mail process in" Virginia prisons. Id. at 6.
order to receive equitable tolling of the limitations period,
a 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) ("We believe, therefore, that any resort to
equity must be reserved for those rare instances where - due
to circumstances external to the party's own conduct - it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result.")
the circumstances White describes do not warrant equitable
tolling. The time period relevant to the issue of equitable
tolling in this case is from November 8, 1997, when the
conviction at issue became final, until November 8, 1998,
when the §2254(d) limitations period expired. White
alleges no facts specific to that time period which could
constitute extraordinary circumstances warranting equitable
tolling, nor does he include any description whatever of any
steps he took to pursue his claims. Cf United
States v. Williams, 2011 WL 6842991 at *3 (E.D.Va. Dec.
29, 2011) (finding no extraordinary circumstances or due
diligence when no specific facts alleged for the relevant
time period). And even taking all of White's allegations
of corruption by Detective Ford and the prosecutor as true,
he includes no explanation of how those factors impeded his
ability to file a timely § 2254 petition. For these
reasons, neither equitable nor statutory tolling applies in
this case, and the petition must be dismissed as
of Bias and /or Prejudice
March 12, 2019, petitioner filed a document he has captioned
as an Affidavit of Bias and /or Prejudice [Dkt. No. 19],
which includes several exhibits principally consisting of
copies of pleadings filed in this case as well as in his
earlier habeas action, White v. Pearson, 1:16cv900
(AJT/JFA). See n. 1, supra. White asserts
in the Affidavit that" U.S. District Court Judge Anthony
J. Trenga, before whom the matter is pending, has a personal
bias and/or prejudice against Affiant or in favor of the
adverse party, and Judge Trenga should not proceed no
further, but another Judge should be assigned to adjudicate
the case." Id. at 1. The Court thus construes
this pleading a Motion for Recusal.
the United States Code, a federal judge "shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned." 28 U.S.C.
§ 455(a). Disqualification is required if a reasonable
factual basis exists for doubting a judge's impartiality.
People Helpers Foundation. Inc. v. City of Richmond,
12 F.3d 1321, 1325 (4th Cir. 1993); Rice v.
McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978). The
relevant inquiry is whether a reasonable person would have a
factual basis to doubt the judge's impartiality, and not
whether the judge in fact is impartial. In re Beard,
811 F.2d 818, 827 (4th Cir. 1987). To be disqualifying, the
judge's alleged bias must stem from an extrajudicial
source and result in an opinion on the merits on some basis
other than what the judge learned from his participation in
the case; in other words, the prejudice must be personal
rather than judicial. United States v. Grinnell
Corp., 384 U.S. 563, 583 (1996); Shaw v.
Martin, 733 F.2d 304, 308 (4th Cir.1984). "The mere
fact that a judge has entered adverse rulings on motions or
presided over other parallel proceedings is not enough in and
of itself to warrant recusal." Hause v.
Witkowski, 98 F.3d 1334 (4th Cir. 1996) (table), 1996 WL
593798 (4th Cir. Oct 16, 1996), citing United States v.
Parker, 742 F.2d 127, 128-29 (4th Cir. 1984). Thus,
"judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion ... [T]hey... can only
in the rarest circumstances evidence the degree of favoritism
or antagonism [to make fair judgment impossible]... when no
extrajudicial source is involved." Liteky v. United
States, 510 U.S. 540, 555 (1994); accord. United
States v. Williamson, 213 Fed.Appx. 235 (4th Cir. 2007)
(district court's denial of disqualification motion was
not error where no showing of extra-judicial bias was made).
case, no reasonable factual basis for doubting the
Court's impartiality has been suggested. Instead, the
sole basis on which White seeks recusal is because the Court
"refused to order and evidentiary hearing and refused to
allow due process by the full disclosure of the facts...
[B]ased on Judge Trenga's rulings and actions, it is
clear that he has a pattern of being bias [sic] and/or
prejudice [sic] against Affiant." Id. at 4.
These reasons, either individually or in concert, are not
cognizable bases upon which to grant recusal. White makes no
claim of extra- judicial bias or prejudice, and indeed, none
exists. Without such a showing, recusal is not warranted.