Claiborne v. Director of Department of Corrections, No. 3:2011cv00368 - Document 14 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/12/12. Copy sent: Yes(tdai, )
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IN THE UNITED FOR THE STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division TYEL CLAIBORNE, Petitioner, v. Civil Action No. DIRECTOR OF 3:11CV368 DEPARTMENT OF CORRECTIONS, Respondent. MEMORANDUM OPINION Tyel se, Claiborne, brings Petition") the City this a Virginia petition pursuant challenging his of state Richmond, to prisoner 28 U.S.C. proceeding § 2254 pro ("§ 2254 convictions in the Circuit Court for Virginia ("Circuit Court"). Respondent has moved to dismiss on the ground that the one-year statute of limitations governing federal habeas petitions Petition. Claiborne has responded. The bars matter the § 2254 is ripe for disposition. I. PROCEDURAL HISTORY On February 10, 2000, Claiborne of first degree murder commission of that crime. 2878, F-99-2874, a jury in the Circuit Court convicted and use of a firearm in the Commonwealth v. Claiborne, at 2 (Va. Cir. Ct. Feb. 10, 2000). Nos. F-99- On the same day, a judge convicted Claiborne of possession of a firearm by a felon in relation to the first degree murder. Commonwealth v. Claiborne, May 4, No. F-99-2875, 2000, the at 1 (Va. Cir. Circuit Court Ct. Feb. sentenced 10, 2000). Claiborne On to life imprisonment plus eight years. A. On ("Court Appeal After May 4, 2000 Sentencing October 26, 2000, the Court of denied Claiborne's of Appeals") Appeals appeal of Virginia in part stating that the evidence adduced at trial was sufficient to support his convictions. Claiborne v. (Va. Oct. 2000). Ct. App. 26, Commonwealth, The No. Court 1282-00-2, of Appeals at 3 granted Claiborne's appeal in part and remanded Claiborne's case back to the Circuit conviction Court due to for a resentencing jury on instruction Claiborne's error. murder Claiborne v. Commonwealth, No. 1282-00-2, at 1 {Va. Ct. App. Jan. 22, 2001). B. On Resentencing in the Circuit Court July Claiborne to 23, 2001, life the imprisonment Commonwealth v. Claiborne, No. 2001) . Circuit Claiborne failed for Court to murder the F-99-2878 appeal again sentenced conviction. (Va. Cir. Ct. July 23, the July 23, 2001 resentencing order. C. Counsel's Failure to Appeal Resentencing Claiborne Gammino, indicating submits dated that two September the Court letters 13, of 2001 from his and Appeals counsel, September of Virginia David 18, M. 2001, rejected Claiborne's appeal of the July 23, 2001 resentencing because Gammino failed to file a timely petition for appeal.1 (Pet'r's Resp. that Exs. 1, 2.) In these letters, Gammino states he enclosed with each letter a petition for a writ of habeas corpus completed by Habeas"). on Claiborne's behalf (the "Pre-completed Gammino encourages Claiborne to review and sign the petition, Gammino Gammino then asks completed, mail it back Claiborne and I to to [(Gammino)] Gammino. "[s]end this (Id. Exs. 1, form back to will forward it to the Court. 2.) me Once I do this, the Court will appoint another attorney to file your appeal with the Virginia Supreme Court." nothing before Gammino filed the any Court habeas indicates petition on that (Id. Ex. 2.) either However, Claiborne Claiborne's behalf or until July 20, 2003. D. Claiborne's State Court Habeas Petitions On July 20, habeas corpus August 12, 2003, Claiborne filed a petition for a writ of in 2003, the Circuit Court ("First Petition"). the Circuit Court dismissed the First On Petition because Claiborne failed to submit either a filing fee or an in forma pauperis affidavit. (Va. Cir. Ct. Aug. Claiborne v. True, No. CL03-R-1684 12, 2003). 1 These letters are addressed to Claiborne at "Red Onion State Prison." (Pet'r's Exs. 1, 2.) 3 On October 21, 2008, Claiborne submitted a petition writ of habeas corpus to the Supreme Court of Virginia Petition"). rejected On January 29, the Second 2009, Petition as for a ("Second the Supreme Court of Virginia untimely pursuant to Virginia Code § 8.01-654(A)(2).2 Claiborne v. Dir. of the Dep't of Corr., No. 2009). 082139 On or petition ("Third rejected (Va. Jan. about for a 29, April writ Third Ct. Apr. 27, Claiborne habeas corpus On April 27, Petition Code § 8.01-654(A)(2). Cir. 2010, of Petition"). the 16, as the Circuit Court 2010, the Circuit Court pursuant to untimely Nothing another to Claiborne v. Johnson, 2010). submitted before No. the Virginia CL10-1788 Court indicates that Claiborne appealed this decision. 2 This section states, in pertinent part, that: A habeas corpus petition conviction or sentence years from the date attacking a criminal . . . shall be filed within two of final judgment in the trial court or within one year from either final disposition of the direct appeal in state court or the time for filing such appeal has expired, whichever is later. Va. Code Ann. § 8.01-654(A)(2) (West 2011). 4 (Va. E. Claiborne's On this May 27, Court. Federal 2011, (§ Habeas Claiborne 2254 Pet. Petition filed 15. )3 his In § the 2254 § Petition 2254 in Petition, Claiborne makes the following claims for relief: Claim One Counsel deficiently failed investigate plausible evidence, of defense, witnesses, Commonwealth's to lines and the case. Claim Two Counsel deficiently failed timely notice of appeal. to file a Claim Three The Commonwealth's Attorney denied Claiborne due process of law by failing to disclose exculpatory evidence prior to trial. (§ 2254 Pet. 6-9.) II. A. ANALYSIS Statute of Limitations Respondent contends that the federal statute of limitations bars Claiborne's Effective Death claims. Section Penalty Act 101 ("AEDPA") of the Antiterrorism amended 28 U.S.C. and § 2244 to establish a one-year period of limitation for the filing of a petition for a writ of habeas pursuant U.S.C. to the § 2244(d) corpus by a person in custody judgment of a state court. Specifically, 28 now reads: 3 The Court deems the petition filed on the date Claiborne swears he placed Houston v. Lack, the petition 487 U.S. 266, in the prison 276 (1988). 5 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 (A) latest of the date on which the judgment final by the conclusion of review or the expiration for seeking such review; (B) of became direct the time 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. B. "The § 2244(d). Commencement of the Statute of Limitations one-year statute of limitations begins to run on a habeas petition that challenges a resentencing judgment on the date the v. that the resentencing date that the original Rose, Crosby, 436 341 F.3d Claiborne's 1209 became final, 1246 (6th Cir. in 2000)). the 704 (4th Cir. (citing 2003); Hepburn v. thirty days after Circuit 2002) Linscott Hence, (11th Cir. (11th Cir. than 2006) Court, for purposes of § 2244(d) (1) (A) . 701, rather conviction became final." 591 re-sentencing became final F.3d 587, F.3d 1240, 215 F.3d 1208, 277 judgment ("[T]he Walker v. Moore, his judgment Hill v. Braxton, one-year limitation period begins running when direct review of the state conviction is completed expired Ct. R. or when . . . ." 5A:6(a) re-sentencing the time for (citing 28 U.S.C. (2001).4 order seeking direct review § 2244(d)(1)(A))); Va. has Sup. The Circuit Court entered Claiborne's on July 23, 2001. conviction became final on Wednesday, date to file his notice of appeal. Thus, August 22, Claiborne's 2001, the last Claiborne then had one year, 4 In 2001, 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) (Michie 2001). failed to file a notice of appeal, Thus, because Claiborne the time for seeking direct review expired thirty days after the Circuit Court entered final judgment. 7 or until Thursday, August 22, 2002, to file any federal habeas challenge to his conviction or sentence. Claiborne did not file the § 2254 Petition until May 27, 2011. Accordingly, the § 2254 Petition is untimely. C. Statutory Tolling Claiborne did not file any of his three state court habeas petitions prior to the expiration of the AEDPA one-year statute of limitations. AEDPA none statute of Thus, of none of these limitations. petitions Moreover, as could toll explained the below, these three petitions were "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2). Hence, timely submitted these state court even if Claiborne had habeas petitions, they were not eligible for statutory tolling. To toll (1) properly the statute filed (2) of limitations post-conviction review of (3) the pertinent judgment. an action or must other be a collateral 28 U.S.C. § 2244(d)(2). [A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. Artuz v. omitted) Bennett, 531 (citing cases). U.S. 4, 8 (2000) (internal footnote Claiborne failed to properly file the First Petition because he neither paid the proper filing fee nor properly requested leave to proceed in_ forma pauperis. v. Kelly, 29, 3:10cv871, 2011) 942, (citing Artuz, 944-45 KD-B, 2011 WL 5975242, (8th Cir. 2009 WL 531 U.S. 2008); 3414280, at (E.D. *4 Va. November Burt, at 8; Runyan v. Phillips v. at *3 521 F.3d No. 06-00816- Culliver, (S.D. Ala. Chilton Oct. 16, 2009). Claiborne failed to properly file the Second and Third Petitions because they were untimely filed. U.S. 408, qualify Thus, 417 for the (2005). statutory statute See Pace v. These tolling of petitions, of the limitations therefore, statute ran DiGuglielmo, for of D. Court § 2244(d)(1)(D) must limitations predicate discovered may of next entitles limitations 3564 days before Accordingly, Petition. Claiborne period. As commence the through claim the consider on or to belated pertinent "the claims exercise of whether date here, on due belated commencement petitioners they could when not have of the of statute the could diligence." This 28 U.S.C. commencement which presented § 2244(d)(1)(D). earlier. not Belated Commencement The the do limitations. Claiborne filed the § 2254 Petition in this Court. the statute of limitations bars the § 2254 544 factual have been 28 U.S.C. provision protects brought their claims Claiborne argues the limitations pursue that he merits period a direct because appeal § 2244(d) (1) (D) , the petitioner discovered, the his counsel from Claiborne's limitation knows, a belated commencement or period through factual due predicate for failed sentencing.5 begins to 3:07CV266, (citing Owens 2008 Schlueter v. Boyd, WL v. 235 652111, a F.3d (E.D. F.3d 69, 359 356, *2 (7th Cir. timely "Under when could potential 384 Varner, at run diligence the have Va. 74 claim, not McKinney v. when he recognizes their legal significance." No. to of Ray, Mar. (3d 11, Cir. 2000)). 2008) 2004); Claiborne knew of counsel's failure to perfect his appeal as of September 13, (See 2001, the Pet'r's explanation, date of counsel's Resp. however, Ex. as 1.) to after the receipt of this first letter Claiborne why it letter to took him file the stating has much. offered almost First as two no years Petition in the Circuit Court and nearly eight years after the rejection of the First Petition to file the § 2254 Petition in this Court. Nevertheless, the Court acknowledges that Claiborne's counsel failed to file a timely direct appeal through no fault 5 Claiborne's arguments lack any assertion that he returned the Pre-completed Habeas to Gammino and Gammino failed to timely file it. While such facts might influence this Court's analysis, nothing indicates either that Claiborne returned the Pre-completed Habeas to Gammino or that Claiborne attempted to file the Pre-completed Habeas himself prior to filing the First Petition. Also, the record clearly establishes that the First Petition and the Pre-completed Habeas are not the same document. 10 of Claiborne's. limitations after the U.S.C. The commenced date as which § 2244(d)(1) will of therefore September appears on required Petition by Monday, so. Court even 30, Claiborne with the statute sixteen letter. to 2002. the 2001, Gammino's September 30, Accordingly, deem file days Thus, the of § 28 2254 Claiborne failed to do benefit of a belated commencement, the § 2254 Petition is untimely. E. Equitable Tolling Petitions equitable 2560 tolling. (2010). 'petitioner' '(1) pursuant that (2) that See The is he to U.S.C. Holland Supreme v. § Florida, Court has has been pursuing his Id. at 2562 are 130 "made rights some extraordinary circumstance at 418). 2254 'entitled to equitable tolling' prevented timely filing." burden 28 subject S. Ct. clear to 2549, that a only if he shows diligently, stood in his way' (quoting Pace, 544 and and U.S. An inmate asserting equitable tolling "'bears a strong to show specific facts'" which demonstrate that he fulfills both elements of the test. Yang v. Archuleta, 525 F.3d 925, Brown 512 1304, 928 1307 (10th Cir. (11th Cir. 2008) (quoting v. Barrow, F.3d 2008)). Claiborne fails to demonstrate that he pursued his rights diligently or that some extraordinary circumstance prevented him from filing in a timely manner. 11 Claiborne does not attempt to explain any other reason why he tolling. Accordingly, tolling. should be entitled to equitable Claiborne is not entitled to equitable Because Claiborne fails to demonstrate any meritorious grounds for equitable tolling of the limitation period, the § 2254 Petition will be denied as untimely. III. For the foregoing CONCLUSION reasons, Respondent's (Docket No. 4) will be granted. under 28 U.S.C. § 2254 will Motion to Dismiss Claiborne's petition for relief be denied. The action will be dismissed. An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA"). 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 proceed further.'" 28 only U.S.C. when for that matter, resolved were in 'adequate Slack v. (quoting Barefoot v. Estelle, law or evidence suggests a § 2253(c)(2). "reasonable to McDaniel, jurists agree that) different manner deserve could the petition or that encouragement the to 529 U.S. 473, 484 (2000) 463 U.S. 880, 893 n.4 that Claiborne 12 This (1983)). is entitled to No further consideration will in this matter. A certificate of appealability therefore be denied. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Claiborne and counsel for Respondent. An appropriate Order shall issue. /s/ fltC Robert E. Payne Senior United States District Judge Richmond, Virginia Date: 7^ck/a,jL^ 13
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