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Fallen v. Clarke

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

August 27, 2019

HAROLD W. CLARKE, Respondent.



         Shaquan Jamar Fallen, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his criminal judgment entered by the Circuit Court for the City of Danville. This matter is.before the court on respondent's motion to dismiss. After reviewing the record, the court concludes that respondent's motion must be granted and Fallen's § 2254 must be petition dismissed as time-barred.


         On July 21, 2015, after Fallen pled nolo contendere, the Circuit Court for the City of Danville entered a final order convicting him of second degree murder, use of a firearm in the commission of a felony, and discharging a firearm in a public place resulting in death. The court sentenced him to a total of forty-eight years of incarceration, with twenty-three years suspended. Fallen did not appeal. On or about June 16, 2017, [1] Fallen filed a petition for a writ of habeas corpus in the Circuit Court for the City of Danville, alleging that his plea was not knowing and voluntary because counsel was ineffective when he misadvised Fallen regarding the sentencing guidelines. Specifically, Fallen states that counsel advised him that "the guidelines were an accurate reflection of the punishment range for the offense[s he] was pleading guilty to." However, Fallen states that he has "now learned" that the guideline calculation "included a crime [(robbery)] which [he] was convicted of after" committing the crimes to which he plead guilty. Fallen argues that the robbery conviction should not have been considered in calculating his guideline range. The Circuit Court denied his habeas petition on October 20, 2017. The court found that his claim concerning the voluntariness of his plea was defaulted under Slayton v. Parrigan, 205 S.E.2d 680. 682 (Va. 1974), and that his ineffective assistance of counsel claim failed on its merits under Strickland v. Washington, 466 U.S. 668 (1984), because Fallen failed to demonstrate that counsel's performance was deficient or that Fallen was prejudiced by the alleged deficient performance. Fallen appealed and the Supreme Court of Virginia dismissed his petition on June 22, 2018, as untimely filed. Fallen filed the instant federal habeas petition no earlier than October 29, 2018, alleging the same claims that he raised in his state habeas petition. See Pet., ECF No. 1, 12; R. Gov. § 2254 Cases 3(d) (describing the prison-mailbox rule).


         Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner has a one-year period of limitation to file a federal habeas corpus petition. This statute of limitations runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an' application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C)the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Here, Fallen alleges nothing to support application of § 2244(d)(1)(B)-(D).[2] Under § 2244(d)(1)(A), Fallen's conviction became final on August 20, 2015, when his time to file a direct appeal of his conviction expired, see Va. Code § 8.01-675.3 and Va. S.Ct. R. 5 A:6, and the statute of limitations began to run on that date. Therefore, Fallen had until August 22, 2016, to file a timely federal habeas petition.

         Fallen did not file his state habeas petition until June 16, 2017, approximately 300 days after the one-year limitations period expired. Thus, Fallen's state habeas petition afforded him no statutory tolling under § 2244(d)(2), [3] and his federal habeas petition is time-barred unless he demonstrates that the court should equitably toll the limitations period, Rouse v. Lee, 339 F.3d. 238, 246 (4th Cir. 2003), or that he is actually innocent of his convictions, McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).

         A district court may apply equitable tolling only in "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." Rouse, 339 F.3d. at 246 (citing Harris v. Hutchinson. 209 F.3d 325, 330 (4th Cir. 2000)). The petitioner must demonstrate that some action by the respondent or "some other extraordinary circumstance beyond his control" prevented him from complying with the statutory time limit, despite his exercise of "reasonable diligence in investigating and bringing the claims." Harris, 209 F.3d at 330 (citing Miller v. N.J. State Dep't of Corrs., 145 F.3d 616, 618 (3d Cir. 1998)). An inmate asserting equitable tolling '"bears a strong burden to show specific facts'" that demonstrate he fulfills both elements of the test. Yang v. Archuleta. 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)). The Fourth Circuit defines diligence as "the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." Lawrence v. Lynch, 826 F.3d 198, 204 (4th Cir. 2016) (quoting Diligence, Black's Law Dictionary (10th Ed. 2014)).

         In support of an equitable tolling argument, Fallen states that he repeatedly requested his "entire trial record" from defense counsel, but that his letters were ignored until he filed a Virginia State Bar complaint against counsel. Once he "finally received the trial record and corresponded with counsel about the guidelines," he "discovered" that counsel's ineffectiveness "cause[d him] to enter unknowing[] pleas of guilty." See Resp. Opp., ECF No. 16, 2. Fallen argues that "absent evidence to ...

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