Stanley v. Stewart et al, No. 3:2011cv00744 - Document 15 (E.D. Va. 2012)

Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 10/2/12. Copy sent: Yes(tdai, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MELVIN STANLEY, Petitioner, v. Civil Action No. JAMES STEWART, III, 3:11CV744 et al. Respondents. MEMORANDUM OPINION Melvin brings this Petition"). Stanley, a petition Virginia pursuant detainee to U.S.C. § pro 2254 se, ("§ 2254 Respondent1 moves to dismiss on the ground that the one-year statute petitions bars the § 2254 Petition. has not responded. of limitations governing federal habeas 11.) Stanley (Docket No. The matter is ripe for disposition. I. PROCEDURAL HISTORY A. State Proceedings The Circuit Court") 2000. 28 proceeding Court for the County convicted Stanley on one Commonwealth v. Dec. 21, 2000). judgment against Stanley, On May 5, Stanley of count of No. Stafford rape on CR00000376-00 {''Circuit December 21, (Va. Cir. Ct. 2009, the Circuit Court entered final finding him to be a sexually violent 1 Although Stanley names two individuals as Respondents, James Stewart appears to be the only proper Respondent. The Attorney General for the Commonwealth of Virginia filed a response only on behalf of Stewart. predator pursuant Code Ann. to § 37.2-900, the Sexually et seq. Violent Predators (West 2012). Act, Va. Under the authority of Sections 37.2-908 and 37.2-909 of the Virginia Code, on July 21, 2009, the Circuit Court committed Stanley to the custody of the Commissioner of the Virginia Department of Behavioral Health and Departmental Commitment, Ct. July Services Commonwealth v. 21, 2009). ("DBHDS"). Stanley, Stanley No. filed Order for CL08000506-00 neither an Pet. (Va. Cir. appeal petition for a writ of habeas corpus in state court. Civil nor a (Am. § 2254 3-5.) On July 19, 2010, the Court conducted an annual review hearing of Stanley's civil commitment pursuant to Section 37.2- 910 of the Virginia Code and ordered Stanley recommitted.2 B. Federal On November this Court. Habeas Petition 1, 2011, Stanley filed his (§ 2254 Pet. 8.)3 § 2254 Petition in In his § 2254 Petition, Stanley contends: 2 Respondent did not provide the recommitment order with his response; however, the Circuit Court scheduled the annual review hearing for July 19, 2010, Commonwealth v. Stanley, No. 21, 2009), and Stanley see Order for Civil Commitment, CL08000506-00 (Va. Cir. Ct. July does not contest that the hearing occurred that day. 3 The Court deems the § 2254 Stanley apparently placed system. Houston v. Lack, the Petition filed on the date petition 487 U.S. 266, in 276 the prison (1988). mailing Claim One: Section Virginia 37.2-900 et seq. Code is an unlawful attainder under Article of the bill of Section 9 I, and 3 of the U.S. Constitution;4 Claim Two: Civil commitment violates the Fourteenth Amendment5 because it is used "to single ex-sex out one offenders''; group (Am. § of citizens 2254 Pet. 7 (capitalization corrected).) Claim Three: Civil commitment violates the Thirteenth Amendment6 because it amounts to involuntary servitude and class discrimination; Claim Four: Civil and commitment Thirteenth Amendment violates because it the amounts to punitive conditions of confinement. II. A. ANALYSIS Statute Of Limitations Section 101 Penalty Act of the ("AEDPA") Antiterrorism amended 28 U.S.C. and § Effective 2244 to Death establish a one-year period of limitation for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to the 4 "No Bill of Attainder or ex post facto Law shall be passed." U.S. Const. Art. I § 9, cl. 3. "No State shall . . . deprive any person of life, liberty, or property, amend. XIV, without due process of law. . . ." U.S. Const, § 1. 6 "Neither slavery nor involuntary servitude, except as a punishment for convicted, shall Const, amend. crime whereof the party shall within the United States exist XIII, § 1. have . . been duly . ."U.S. judgment of a state court.7 Specifically, 28 U.S.C. § 2244(d; now reads: 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). 7 See Revels v. Sanders, 519 F.3d 734, 740 (8th Cir. 2008) (applying the AEDPA's statute of limitations of the civilly committed). to the confinement B. Commencement Of The Statute Of Limitations Under 28 U.S.C. § 2244(d)(1)(A) Respondent the original Thursday, appeal civil August with the F.3d 701, 704 begins tersely concludes commitment 20, 2009, Circuit (4th Cir. 2002) running when direct Stanley order, when Court that the which time only became to file Hill expired. challenges v. final notice a on of Braxton, 277 ("[T]he one-year limitation period review of the state conviction is completed or when the time for seeking direct review has expired . . . ." 5:9(a) (citing 28 U.S.C. (West 2009).8 § 2244(d)(1)(A))); Va. Sup. Ct. Pursuant to Respondent's reasoning, R. the limitation period began to run the next day, and 802 days of the limitation Petition period on elapsed Tuesday, before November Stanley 1, filed 2011. his See § 28 2254 U.S.C. § 2244(d)(2). In some circumstances, however, a petitioner challenging a court's determination that he is a sexually violent predator has one year from petition. See each subsequent Ballard v. determination Cuccinelli, No. to file 3:10cv524, a § 2254 2011 "No appeal shall be allowed unless, within 30 days after the entry of final judgment or other appealable order or decree . . . counsel for the appellant 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." Va. Sup. Ct. R. 5:9(a). WL 1827866, Bartow, at *2 n.5 (E.D. Va. 628 F.3d 871, 876 (7th Cir. to delve into such analysis is untimely whether or his Circuit recommitted judgment measured Court 2010)). as It is unnecessary Stanley's from Stanley's conducted Stanley on became which final the July on time § 2244(d)(1)(A); Va. § 2254 initial § 2254 Petition commitment nor the belated commencement until suggests of August 18, expired. review and recommitment 2010, See the 28 date U.S.C. Stanley cites no other § 2254 Petition. Thus, under the time to file his § 2254 Petition on August record annual Stanley's 5:9(a). in his Petition Stanley 2010. appeal Sup. Ct. R. expired at the latest Stanley's Wednesday any pertinent circumstance, his 19, to hearing or judgment date file here, 2011)9 (citing Martin v. recommitment. The upon May 12, the 18, 2011. Stanley November 1, circumstances limitations period, failed to 2011. that see Neither warrant 28 a U.S.C. § 2244(d)(1)(B)-(D), or equitable tolling. Accordingly, will be granted. Respondent's Motion to Dismiss The § 2254 Petition will be (Docket No. 11) denied and the action will be dismissed. 9 The United States Court of Appeals for the Fourth Circuit denied a certificate of appealability and dismissed the appeal. See Ballard v. Cuccinelli, 449 2011). 6 F. App'x 242, 242 (4th Cir. 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). unless a prisoner makes a constitutional requirement is whether (or, should have issues presented been were (quoting Barefoot v. evidence consideration that U.S.C. when matter, in a to Slack v. "reasonable agree not issue Estelle, 463 U.S. that matter. Stanley A the manner or 529 U.S. 880, is This jurists that) deserve McDaniel, this will § 2253(c)(2). different ^adequate suggests in 28 only resolved proceed further.'" or for COA substantial showing of the denial of right." satisfied debate law "a A petition that encouragement 473, 893 n.4 of 484 to the to (2000) (1983)). entitled certificate could No further appealability will therefore be denied. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Stanley and counsel for Respondent. An appropriate Order shall issue. Is/ ££<P Robert E. Payne Senior United States District Judge Richmond, Virginia Date: ficU^-*^^

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