McCullough v. Commonwealth of Virginia - Document 22

IN THE UNITED FOR THE STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division DENNIS SCOTT McCULLOUGH, Petitioner, v. Civil Action No. 3:10CV698 COMMONWEALTH OF VIRGINIA, Respondent. MEMORANDUM OPINION Dennis Scott McCullough, a federal inmate se, brings this petition pursuant to 28 U.S.C. Petition") for the challenging his City of 1997 Norfolk, proceeding § 2254 pro ("§ 2254 conviction in the Circuit Court Virginia. McCullough raises the following two claims for relief: Claim One McCullough received assistance of ineffective counsel when counsel advised him to plead guilty despite the fact that counsel should have known that there had been a Fourth Amendment1 violation Claim Two in his case. McCullough's rights under the Fourth and Fifth2 Amendments were violated when the police film and allowed air a the search news of media to McCullough's home performed by police in 1996. 1 "The right of the people to be secure in their persons, houses, papers, seizures, and effects against unreasonable shall not be violated . . . ." U.S. searches Const, amend. and IV. 2 "No person . . . shall be deprived of life, liberty, or property amend. V. without due process of law . . . ." U.S. Const, (§ 2254 Pet. 6, ground that federal habeas responded. 7.) the Respondent one-year petitions has statute bars moved of the to dismiss limitations petition. on the governing McCullough has The matter is ripe for disposition. I. PROCEDURAL HISTORY McCullough pled guilty in the Circuit Court for the City of Norfolk ("Circuit Court") to one count of possession of cocaine with intent to distribute. The Court sentenced McCullough to an active sentence of four (4) years and six (6) months in prison. Commonwealth v. McCullough, No. Ct. Aug. 2, 1997). CR96002275-00, McCullough did not at appeal 1-2 (Va. Cir. his conviction. Subsequently, McCullough was convicted in this Court and, partly due to his Circuit enhancement.3 coram vobis McCullough v. Jan. 22, violations. received a sentence of 2009, McCullough filed a petition for a writ (the "Coram Commonwealth, 2010) . expungement conviction, (§ 2254 Pet. 14.) On October 2, of Court Vobis") No. CL09007093, In the Coram Vobis, his Id. conviction On in January due 22, the at 2 Circuit (Va. Court. Cir. Ct. McCullough argued for the to various 2010, the constitutional Circuit Court •5 McCullough hopes to overcome this sentence enhancement by successfully challenging the April 30, Pet. 14.) 1997 conviction. (§ 2254 dismissed the Coram Vobis because McCullough's cognizable in coram vobis.4 On September 19, 2010, McCullough filed 28 U.S.C. (§ 10, Pet. McCullough U.S.C. to 10. )5 file On his on April 25, 2011, March not a petition for a 2241 in this Court. 2011, claim on the § 2254 petition. were Id. at 2-3. writ of habeas corpus pursuant to 2241 claims the Court ordered standardized form for a 28 McCullough complied with this order and the Court ordered that McCullough's § 2241 petition be supplanted by the § 2254 Petition. II. A. ANALYSIS Statute of Limitations Respondent contends that the federal statute of limitations bars McCullough's claims. Effective Death Section 101 Penalty Act ("AEDPA") of the Antiterrorism and amended 28 U.S.C. § 2244 to establish a one-year period of limitation for the filing of a petition for a writ of habeas pursuant to the judgment U.S.C. § 2244(d) of a state court. only Specifically, 28 now reads: "MT]he limited purpose correct corpus by a person in custody xclerical of error' McCullough, No. CL09007093, Commonwealth, 650 S.E.2d 514, a writ or at 518 of certain coram vobis *error 2-3 (quoting (Va. 2007)). in is to fact.'" Neighbors v. 5 The Court deems the motion filed on the date McCullough swears he placed Houston v. Lack, the petition 487 U.S. 266, in the 276 (1988). 3 prison mailing system. 1. A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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 filing an on which the impediment to application created by State action violation or in laws of the of the United Constitution 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; (D) 2. or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). Thirty days Court, after McCullough's sentencing in the Circuit his judgment became final for purposes of AEDPA. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) Hill v. ("[T]he one-year limitation period begins running when direct review of the state conviction review Sup. is has Ct. completed expired." R. or when (citing 28 5A:6(a) sentencing order McCullough's conviction became time U.S.C. (1997).6 McCullough's the The on § seeking Circuit on direct 2244(d)(1)(A)); August final for Court 2, entered 1997. Monday, 1997—the last date to file his notice of appeal. Va. Thus, September 1, The statute of limitations ran for 4413 days before McCullough filed the Coram Vobis on October 2, 2009. Though this filing would normally toll the statute of limitations under 28 U.S.C. § 2244(d)(2), in this case more than one-year from the final judgment had already elapsed. Thus, there was nothing to toll. failed to file his § 2254 judgment in his criminal Because McCullough Petition within one-year case, the statute of of final limitations bars his petition. 6 In 1997, Rule 5A:6(a) read in relevant part: Timeliness. — No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel and the clerk of the Court of Appeals. Va. Sup. Ct. R. 5A:6(a) (1997). Thus, because McCullough failed to file a notice of appeal, the time for seeking direct review expired judgment. thirty days after the Circuit Court entered final B. Belated Commencement The Court must next consider whether McCullough is entitled to belated commencement of the limitations period. here, a As pertinent federal law provides that in addition to the date on which judgment commence on becomes "the final, date on the which statute the of limitations factual predicate may of the claim or claims presented could have been discovered through the exercise belated of due diligence." commencement 28 U.S.C. provision § protects 2244(d)(1)(D). petitioners This when their claims could not have been brought earlier. Here, McCullough argues that he did not discover the factual predicate for his claim, in the form of case law, until "recently ... by reading the Virginia Lexis Pet. 14.) However, support a failure to discover claim § 2244(d)(1)(D), the petitioner knows, discovered, the for belated factual through due predicate a legal theory cannot for begins to 3:07CV266, 2008 WL (citing Schlueter v. 652111, Varner, Owens v. Boyd, 235 F.3d 356, a knew could or have (E.D. 384 F.3d 69, discovered run when the could have potential at *2 359 "Under diligence when he recognizes their legal significance." No. (§ 2254 commencement. limitation period or Nexis." factual not McKinney v. Va. Mar. 74 11, (3d Cir. (7th Cir. 2000)). the claim, Ray, 2008) 2004); McCullough predicate of his claim, that the media were invited to take part in the search of his home, well prior to his final judgment in the Circuit Court. That McCullough did not discover case law by which he could turn this factual predicate into a legal claim lacks relevance in the context of § 2244(d)(1)(D). McCullough has not IcL_ demonstrated For the foregoing reasons, entitlement to a belated commencement of the statute of limitations. C. Equitable Tolling Petitions pursuant equitable tolling. 2560 (2010). to 28 U.S.C. See Holland v. The Supreme § 2254 Florida, Court has are subject 130 S. "made Ct. clear to 2549, that a 'petitioner' is 'entitled to equitable tolling' only if he shows Ml) that he has been pursuing his rights diligently, that some prevented extraordinary timely DiGuglielmo, equitable filing." 544 U.S. tolling circumstance 408, "'bears icL 418 at stood in 2562 (quoting (2005)). a strong his and (2) way' and Pace v. An inmate asserting burden to show specific facts'" which demonstrate that 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)). McCullough fails to demonstrate that he has been pursuing his rights diligently or that some extraordinary circumstance prevented him from filing in a timely manner. 7 McCullough has not attempted entitled to entitled to any for any period, or Because grounds that limitation reason why Accordingly, tolling. meritorious the other tolling. equitable limitation dates explain equitable demonstrated the to one for of period he should McCullough the later applies, is not has McCullough equitable be not tolling of commencement see 28 U.S.C. § 2244(d)(1)(B)-(D), the petition must be denied as untimely. III. For the foregoing CONCLUSION reasons, Respondent's (Docket No. 14) will be GRANTED. an hearing evidentiary relief be under 28 U.S.C. 2254 to Dismiss McCullough's motion requesting (Docket § Motion No. will 17) be and his DENIED. petition The action for will DISMISSED. An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability PCOA"). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional requirement is debate whether right." satisfied (or, should have been issues presented 28 only U.S.C. when for that matter, resolved were in a 'adequate "reasonable agree that) different to § 2253(c)(2). manner deserve This jurists could the petition or that encouragement the to proceed further.'" Slack v. McDaniel, (quoting Barefoot v. Estelle, 529 U.S. 463 U.S. 880, 473, 893 n.4 484 (2000) (1983)). No law or evidence suggests that McCullough is entitled to further consideration in this matter. A certificate of appealability will therefore be DENIED. The Clerk of the Court is DIRECTED to send a copy of this Memorandum Opinion to McCullough and counsel for Respondent. An appropriate Order shall issue. /s/ fczP Robert E. Payne Senior United States District Judge Richmond, Virginia Date: fr~* 1,10(1-