United States District Court, E.D. Virginia, Alexandria Division
Alkeim D. Howard, Petitioner,
Carl Manis, Respondent.
ELLIS, III UNITED STATES DISTRICT JUDGE.
D. Howard, a Virginia inmate proceeding pro se, has filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging his conviction of the attempted
capital murder of a law enforcement officer entered in the
Circuit Court of Sussex County. Respondent filed a Motion to
Dismiss the petition along with a supporting brief on March
21, 2019, and provided Howard with the notice required by
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975)
and Local Rule 7K. [Dkt. Nos. 21-24] After receiving an
extension of time, Howard filed his opposition to the Motion
to Dismiss on April 11, 2019. [Dkt. No. 29] Accordingly, this
matter is ripe for disposition. After careful consideration,
for the reasons which follow, the petition must be dismissed
as time-barred. Also pending before the Court is
petitioner's Motion for Issuance of Evidentiary Hearing,
which must be denied.
January 6,2014, Howard was convicted of the attempted capital
murder of a law enforcement officer, assault and battery of
another law enforcement officer, malicious wounding, and
misdemeanor destruction of property. He only appealed the
attempted murder conviction, which was affirmed in an
unpublished opinion on November 18, 2014. Howard v.
Commonwealth. R. No. 2150-13-2 (Va. App.Nov. 18,2014);
see id. at n. 1. The Supreme Court of Virginia
refused Howard's petition for appeal of that result,
Howard v. Commonwealth. R. No. 150166 (Va. Oct.
20,2015), and denied his subsequent petition for rehearing on
February 5, 2016.
about October 20, 2016, Howard timely filed a petition for a
state writ of habeas corpus in the Circuit Court of Sussex
County in No. 16-95. The petition was dismissed on the
merits by Final Order dated March 15,2017, and Howard took no
appeal of that decision.
filed a second petition for a state writ of habeas corpus in
the Supreme Court of Virginia on or about December 15, 2017.
The petition was dismissed on February 13, 2018, on the
grounds that: (1) the claims Howard asserted had been raised
and decided in his earlier habeas petition, in violation of
Va. Code § 8.01-663, and (2) the petition was untimely
as it was not filed within one year from the final
disposition of Howard's direct appeal on February 5,
2016, in violation of Va. Code § 8.01-654(A)(2).
Howard v. Mannis, R. No. 171678 (Va. Feb 13,2018).
then turned to the federal forum and filed the instant
application for § 2254 relief in the United States
District Court for the Western District of Virginia on August
9,2018. [Dkt. No. 1 at 35]; see Houston v. Lack. 487
U.S. 266 (1988). The matter was transferred to this district,
and after Howard submitted the statutory filing fee the
petition was filed on February 2, 2019. Howard asserts claims
that the trial judge was biased against him and
"prejudice[d]" his trial, and that he received
ineffective assistance of counsel for several reasons.
petition for a writ of habeas corpus pursuant to § 2254
must be dismissed if it was filed later than one year after
(1) the judgment at issue became final; (2) any state-created
impediment to filing a petition was removed; (3) the United
States Supreme Court recognized 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 this case, Howard's conviction of
attempted murder became final on May 5,2016, ninety (90) days
after the Supreme Court of Virginia denied his petition for
rehearing on his direct appeal, when the time expired during
which he could have petitioned the United States Supreme
Court for a writ of certiorari. See U.S. Sup. Ct. R. 13(1)
(petitions for review are timely filed within 90 days of the
entry of judgment by a state court of last resort); see
also Lawrence v. Florida. 549 U.S. 327, 333 (2007).
Thus, the §2254(d) one-year limitations period as to the
attempted murder conviction began to run on that
calculating the one-year limitations period, a court must
exclude the time during which properly-filed state collateral
proceedings pursued by a petitioner were pending. See 28
U.S.C. § 2244(d)(2); Pace v. DiGuslielmo. 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, after the
attempted murder conviction became final on May 5, 2016, the
limitations period ran unchecked for 167 days, until Howard
filed his petition for habeas corpus relief in the Sussex
County Circuit Court on October 20, 2016. The limitations
period remained tolled until the petition was dismissed on
March 15, 2017 and the thirty-day period during which Howard
could have appealed that decision expired. See Va. Sup. Ct.
R. 5:9. It thus commenced to run again on April 14,2017.
Howard filed a second state habeas corpus application in the
Supreme Court of Virginia in December, 2017, that proceeding
had no effect on the timeliness of the instant petition, for
two reasons. First, the AEDPA limitations period expired on
or about October 29, 2017, or 198 days after it began to run
on April 14, 2017, so it had already terminated before the
second state habeas was filed. Even were that not so, the
second state habeas was not "properly filed,"
because the Supreme Court of Virginia expressly determined
that it was barred by the statute of limitations set out in
Va. Code § 8.01-654(A)(2). Accordingly, the pendency of
that petition would not have acted to toll the § 2254(d)
limitations period. See Artuz v. Bennett. 531 U.S.
4, 8 (2000) (holding that a state collateral proceeding is
not "properly filed" for purposes of tolling the
federal limitations period if it is filed untimely). The
limitations period in this case thus ran unchecked from April
14,2017 until this federal petition was filed on August
9,2018, a period of 481 days. When that period is added to
the 167 days that elapsed before Howard filed his first state
habeas action, a total of 648 days passed from the date
Howard's attempted murder conviction became final until
this § 2254 petition was filed. Since that period
exceeded the one-year limitations period by 283 days, this
petition is time-barred unless Howard can establish that the
statute of limitations does not apply or should otherwise be
response to the Motion to Dismiss, Howard offers several
arguments urging the Court to reach his claims on the merits.
[Dkt. No. 29] He first contends that the untimeliness of his
petition should be excused because of the nature of the
claims he raises; that is, that his trial was fundamentally
unfair and the judge asked "arbitrary questions."
In fact, arguments such as these, which assert that a
petitioner was deprived of his or her federal constitutional
rights in a state criminal proceeding, are the only claims
cognizable under § 2254, and the one-year limitations
period nonetheless applies to all such proceedings.
next argues that the untimeliness of this petition should be
overlooked because he is actually innocent of the crimes of
which he stands convicted. In McOuiggin v. Perkins.
569 U.S. 383 (2013), the Supreme Court held that a convincing
claim of actual innocence can overcome the §2254(d)
statute of limitations. As with an actual innocence claim in
the context of other procedural defaults, however, the
exception applies only in a "severely confined
category" -that is, cases in which reliable new evidence
shows that "it is more likely than not that 'no
reasonable juror' would have convicted" the
petitioner had the evidence been available at trial.
Id., 569 S.Ct. at 399, quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995). Here, while Howard
invokes the term "actual innocence," the substance
of his ensuing argument is that the trial court erred by
asking questions which relieved the prosecution of the burden
of proof, and defense counsel thereafter neglected to move
for a mistrial. Such trial errors even if true do not warrant
application of the McOuiggin exception to overcome
the limitations bar; instead, the petitioner must make a
convincing showing that he is actually factually innocent of
the crime of which he stands convicted. See U.S. v.
Mikalajunas, 186 F.3d 490,494 (4th Cir. 1999), cert,
denied. 529 U.S. 1010 (2000) (actual innocence exception
is satisfied only by a showing of actual factual innocence; a
showing that petitioner is legally but not factually innocent
does not suffice).
Howard argues that he is entitled to tolling of the
limitations period because two state created-impediments
prevented him from filing his petition in a timely manner. It
is true that tolling of the § 2254 limitations period is
available pursuant to § 2244(d)(1)(B) until a
state-created impediment which "altogether
prevented" the petitioner from filing his habeas claim
in a timely manner is removed. Ramirez v. Yates. ...