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Morales v. Zook

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

September 24, 2019

CARLOS LOPEZ MORALES, Petitioner,
v.
DAVID ZOOK, Respondent.

          MEMORANDUM OPINION

          Elizabeth K. Dillon, United States District Judge.

         Carlos Lopez Morales, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, [1] challenging his criminal judgment entered by the Circuit Court for Floyd County on May 31, 2016. This matter is before the court on respondent’s motion to dismiss (Dkt. No. 15; see also Dkt. No. 27 (supporting brief).) Morales was notified of his opportunity to respond, but he has not filed anything in response to the motion to dismiss. After reviewing the record, the court will grant the motion and dismiss the petition as time barred.

         On May 31, 2016, Morales pleaded guilty, pursuant to a plea agreement, to conspiracy to distribute a schedule I or II substance. (No. CR15-213; see Plea Agreement, Dkt. No. 7 at 160–63.)[2] The Floyd County Circuit Court accepted his guilty plea, (Dkt. No. 7 at 164), and it sentenced him to a total of 25 years’ incarceration with 13 years suspended, which was significantly higher than his advisory guideline range. (May 31, 2016 Sentencing Order, Dkt. No. 7 at 68–69.) Morales did not appeal.

         Morales filed a timely petition for writ of habeas corpus in the Supreme Court of Virginia. (Dkt. No. 7 at 32–56.) Although the record is not clear as to the exact filing date, the court uses the earliest possible filing date-May 11, 2017-which is the most beneficial to him.[3]Virginia’s Supreme Court granted the respondent’s motion to dismiss and dismissed Morales’s petition on November 17, 2017. (Dkt. No. 7 at 142–44.)

         Morales’s first petition in this court was signed on June 14, 2018, and the court treats it as filed on that date. That petition used an improper form, however, and incorrectly named the United States as a respondent. (Dkt. No. 1.) On October 4, 2018, Morales filed an amended petition (Dkt. No. 7). See R. Gov. § 2254 Cases 3(d) (describing the prison-mailbox rule).

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year statute of limitations applies when a person in custody pursuant to the judgment of a state court files a federal petition for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1)(A)–(D); R. Gov. § 2254 Cases 3(c).

         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). Morales alleges nothing to support application of § 2244(d)(1)(B)–(D).

         Under § 2244(d)(1)(A), Morales’s conviction became final, and the statute of limitations began to run, when his thirty-day period to file an appeal to the Court of Appeals of Virginia expired on June 30, 2016. See Va. S.Ct. R. 5A:6 (providing that a defendant has thirty day after entry of judgment to note an appeal). Therefore, Morales had until June 30, 2017, to file a timely federal habeas petition. See Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000) (explaining calculation, as affected by Fed.R.Civ.P. 6(a)).

         Morales filed his state petition on May 11, 2017; at that time, 315 days of the federal statute of limitations had run. The running of the federal statutory period is tolled while a properly filed state habeas corpus proceedings is pending. See 28 U.S.C. § 2244(d)(2). Thus, his limitations period was tolled until the Supreme Court of Virginia refused his petition for appeal on November 17, 2017. At that point, he had fifty days left to file his federal petition. He did not file his first petition in this case until June 14, 2018, [4] ...


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