Barton v. Johnson, No. 1:2008cv01144 - Document 22 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION re: Motion to Dismiss. (see Order for details) Signed by District Judge Claude M. Hilton on 10/15/09. copy mailed; yes(tfitz, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA f Alexandria Division Shawn C. Barton, Petitioner, ) ) v. ) Gene Johnson, Respondent. OCT I 5 2009 CLERK. U.S~ofGlf;\-.;: ' ~ \r l:08cvll44(CMH/JFA) ) ) ) MEMORANDUM OPINION Shawn C. Barton, a Virginia inmate proceeding pjo se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his conviction in the Circuit Court for the City of Chesapeake, Virginia. On April 22,2009, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief. Barton was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and he has opted not to file a response. For the reasons that follow, Barton's claims must be dismissed. I. Pursuant to a final judgment dated December 13, 2004, Barton was convicted following a jury trial of robbery and use of a firearm in the commission of a robbery, and was sentenced to a total of thirteen (13) years in prison. Resp. Ex. 1. Barton filed a direct appeal in the Virginia Court of Appeals, which denied his petition for appeal on August 11, 2005. Resp. Ex. 2. After an initial attempt to petition for further review was dismissed for failure to file a notice of appeal, Resp. Ex. 3, Barton sought and was granted a belated appeal by the Virginia Supreme Court. Resp. Ex. 4. The Supreme Court refused the appeal on March 15, 2007. Resp. Ex. 5. On May 7,2007, Barton submitted a petition for a state writ of habeas corpus to the Virginia Supreme Court, arguing that he had received ineffective assistance of counsel at trial. Resp. Ex. 6. After consideration, the Court denied Barton's claims on the merits in an Order dated October 5, 2007. Resp. Ex. 6. This federal proceeding was commenced in October, 2008. II. As the respondent argues in his motion to dismiss, this petition for § 2254 relief is subject to dismissal as time-barred. A petition for a writ of habeas corpus must be dismissed if filed later than one year after (1) the judgment becomes final; (2) any state-created impediment to filing a petition is removed; (3) the United States Supreme Court recognizes the constitutional right asserted; or (4) the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(l)(A)-(D), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). As Barton makes no allegation of state-created impediment, newly-recognized constitutional right, or newly-discovered evidence, the limitations period began to run in this case on the date the conviction at issue became final. Since the Virginia Supreme Court refused Barton's direct appeal on March 15,2007,' the conviction became final on June 13,2007, the last date Barton could have petitioned the Supreme Court of the United States for a writ of certiorari.2 1 Review by the Supreme Court of Virginia constituted "direct review" for purposes of the AEDPA, despite the fact that leave to pursue that appeal was obtained through a collateral proceeding. Frasch v. Peguese, 414 F.3d 518 (4th Cir. 2005)(applying Maryland law). 2 See U.S. Sup. Ct. R. 13(1) (petitions for review are timely filed within 90 days of the entry of judgment bv a state court of last resort): see also Lawrence v. Florida. 127 S. Ct. 1079, 1083(2007) (reaffirming the inclusion of time for seeking review by the Supreme Court in calculating when direct review of a state criminal conviction becomes final under § 2244(d)). ps§§0[ puE durejs sjBp b qjiM psdurejs si jibui ib§3| jeqj jjABpijjB sjBJBdss b ui suiBjdxs 'usa\o "H 'II xsssns jb JOSiAJodns uioojubjaj sqi "8 *3 dssy -Suissaooad joj iuoojjibiu sqj oj psasAipp U3qj si pue 'iub 00:S inoqB jb Siuiuoiu Xbp>|33a\ qoB3 p3i03[[OD si XjjipBj )Bqi ib uisjsXs [ibiu sqj u; psouid [ibiu icqj §uijs3)jb jiABpyje ub papiAOjd sbi[ 'uosuj sjbjs H xsssns 'uou JO 30B|d S(UO}JBa JB X}UnO3S JO J3iq3 PUB JOfBJAJ SUOIPS-UOQ 3qj '3JOIU||9 X UBAt ¢3SJBJ SBM U01JBiB|03p S.UOyEg ]Bqi X|3AISBnSJ3d SSJBOipUl IJOiq/A 30U3piA3 psjliuiqns seq juspuodssj 'jsasavoh "(pousd suojibjiuiji aqj jo ijbjs sqjjo sjsp ajbsjsaiuub aqj s; uoijob X[3lu;j b Sujininsu; joj Xsp jsbj sqj jBqj os 'pousd suoiiB}iiui[ VJCI3V SuijBinoiBO ui (b)9 'j ¢a|o -y -psj Su;X[ddB)(0003 '*]D Mlt?) 6£t? 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'S'd toS 'oiupqBnoia a 33Bd t(3)(p)t7g33 § OSTl 83 s^S "Suipusd 3J9a\ asuojjjjsd Xq pgnsund s3u]p330oad |bj3Jbi|O3 sjbjs qoiqM Suunp oiuij sqj spnpxs jsnui yno3 sqj 'J3A3A\oq 'poiasd suoubj;uhj jbsX-suo sqj §uijB|noiB0 u] into a ledger book, which indicates the date the correspondence is mailed, the name and inmate number of the sender, and the name of the addressee. Resp. Ex. 7. On weekdays, inmate mail is processed and delivered to the post office on the same day it is received by the mailroom. Inmate mail received by the mailroom on a weekend is processed the next business day. ]d. Mailroom Supervisor Owen reviewed the outgoing legal mail logbook and determined that Barton mailed an item to the Clerk of this Court on October 22, 2008. Resp. Ex. 7. Based upon this information, respondent asserts that the earliest date on which Barton could have delivered his federal petition to prison authorities for mailing was October 21,2008, the day before it was processed and delivered to the post office.3 In addition to the foregoing evidence supplied by the respondent, the Court notes that Barton's petition was received by the Clerk on October 29, 2008. See Docket # 1, Envelope. That date is wholly consistent with the facts as presented by respondent, and it is inconsistent with Barton's declaration that he provided the petition to prison authorities on October 5, 2008, three weeks before its receipt by the Court. Moreover, as noted above, petitioner was informed of his right to respond to respondent's motion to dismiss this petition, and he has failed to come forward with any evidence or argument to rebut the respondent's position that the petition is time-barred. Lastly, it is noted that Barton included no facts or arguments to attempt excuse its untimely filing in the appropriate section of the petition itself. Pet. at 1| 18. Accordingly, because the limitations period of § 2244 (d) expired in this case on October 5, 2008, and because it has been demonstrated to the Court's satisfaction that the petition was not delivered to prison authorities on or before that date, the petition is time-barred from federal consideration on the merits. 3The Court notes that October 22, 2008 fell on Wednesday, a weekday. 4 III. For the foregoing reasons, this petition will be dismissed as untimely filed. An appropriate Order shall issue. Entered this /5>^ day of d2b3£ZL_ 2009. JsL Claude M. Hilton Alexandria, Virginia United States District Judge
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