United States District Court, W.D. Virginia, Roanoke Division
Darrell Hunt, Pro Se Petitioner; Victoria Johnson, Assistant
Attorney General, Office of the Attorney General, Richmond,
Virginia, for Respondent.
P. JONES UNITED STATES DISTRICT JUDGE
Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2254, a Virginia inmate proceeding pro se, contends that his
confinement pursuant to a 2014 Judgment entered by a state
court is unconstitutional. Upon review of the record, I
conclude that the respondent's Motion to Dismiss must be
granted, because the petition is untimely filed.
jury of the Circuit Court for Campbell County returned
Indictments charging Derek Derrell Hunt with five counts of
distribution of cocaine, third or subsequent offense, in
violation of Virginia Code Ann. § 18.2-248. Hunt pleaded
not guilty and was tried before a jury in June of 2014.
During later habeas corpus proceedings, the trial court
summarized the trial evidence against Hunt:
On June 11, June 12, June 13, June 15, and June 21, 2012,
Hunt sold crack cocaine to a confidential informant who was
working with the Campbell County Sheriff's Department. On
each occasion, the transactions were audio and video recorded
and, in four of the recordings, Hunt's face is visible.
The distinctive tattoos on Hunt's arm are also visible in
the videos. After the June 21, 2012 drug transaction,
Investigator Dwayne Wade of the Campbell County Sheriff's
Department Narcotics Division followed the car in which Hunt
was traveling and observed Hunt in the car.
Investigator Wade observed all of the transactions and
monitored the controlled buy operations. Investigator Wade
testified at trial that the confidential informant was
financially compensated and that, in his experience as a law
enforcement officer, it was common for drug dealers to sell
their clients less than the agreed-upon quantity of drugs in
order to increase their profits. Investigator Wade never told
the confidential informant to target a particular person or
gave the confidential informant a set number of drug
transactions that he was required to complete. Both the
confidential informant and his nephew knew Hunt, and the
confidential informant identified Hunt as someone who would
be likely to sell him drugs. At trial, the confidential
informant stated he bought crack cocaine from Hunt on all
five occasion[s] and denied tampering with or concealing any
of the crack cocaine he bought from Hunt.
Investigator Joseph Shepherd of the Campbell County
Sheriff's Office and Investigator Gary Penn of the
Altavista Police Department were also involved in the
controlled buy operation. Both testified at trial that they
had not tampered with any evidence received from the
confidential informant and that the confidential informant
was searched before and after each transaction and was not
concealing any contraband.
At trial, the jury viewed and listened to the recordings of
each of the five drug transactions.
Supp. Mot. Dismiss Ex. 4, ECF No. 10-4 (paragraph numbers and
record citations omitted). The jury convicted Hunt on all
five counts and recommended an aggregate sentence of thirty
years. On October 30, 2014, the court imposed that sentence,
with no time suspended.
appealed, alleging a claim that the evidence was insufficient
“because the informant's testimony was inherently
incredible, ” and a claim that the sentence was
excessive in violation of the Eighth Amendment. Id.
at Ex. 2, ECF No. 10-2. One reviewing judge refused
Hunt's Petition for Appeal, and in October of 2015, a
three-judge panel of the Court of Appeals of Virginia denied
relief. Hunt appealed. In an Order entered June 15, 2016, the
Supreme Court of Virginia refused assignment of error no. 2
of Hunt's appeal and dismissed it as procedurally
defaulted under Supreme Court Rule 5:17(c)(1)(iii).
Id. at Ex. 3, ECF No. 10-3.
Hunt's appeal proceedings, on November 19, 2015, he filed
a Motion to Correct Unlawful Sentence in the Circuit Court
for Campbell County. Id. at Ex. 2, at 4, ECF No.
10-2. The circuit court dismissed the motion in February of
2016 for lack of jurisdiction, because it was not timely
filed. See Va. Sup. Ct. R. 1:1 (“All final
judgments, orders, and decrees, irrespective of terms of
court, shall remain under the control of the trial court and
subject to be modified, vacated, or suspended for twenty-one
days after the date of entry, and no longer.”). Hunt
appealed this jurisdictional dismissal to the Court of
Appeals of Virginia, which held that it did not have
jurisdiction over the appeal and dismissed it by Order dated
October 25, 2016.
then filed a timely Petition for a Writ of Habeas Corpus in
the Circuit Court for Campbell County on or about October 27,
2016. Among other claims, Hunt alleged that his “right
to due process was violated when the Commonwealth failed to
disclose material impeachment evidence regarding the ongoing
criminal investigation of the Alta Vista Police
Department.” Id. at Ex. 4, ECF No. 10-4. He
based this claim on media reports from July of 2016, copies
of which he attached to his state petition. The circuit court
dismissed the petition by Order entered March 27, 2017,
without conducting an evidentiary hearing.
appealed the circuit court dismissal. By Order dated October
17, 2017, the Supreme Court of Virginia dismissed Hunt's
Petition for Appeal because he failed to assign error as
required by its Rule 5:17(c)(1)(i). Id. at Ex. 5,
ECF 10-5. Hunt moved for reconsideration and asked the Court
to accept his petition because of his pro se status and lack
of access to legal materials. He also submitted a two-page
list of Assignments of Error and pointed out that his
petition included clearly ...