Holden v. Clarke, No. 1:2013cv01591 - Document 18 (E.D. Va. 2015)

Court Description: MEMORANDUM OPINION - For the reasons stated Respondent's Motion to Dismiss must be granted, and the petition must be dismissed. An appropriate Judgment and Order will issue. Signed by District Judge T. S. Ellis, III on 03/13/2015. (dvanm, )

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Holden v. Clarke Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division Jarrett D. Holden, Petitioner, ) ) ) V. ) Harold Clarke, Respondent. ) ) ) l;13cvl591 (TSE/MSN) MEMORANDUM OPINION Jarrett D. Holden, a Virginia inmate proceedingeto has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality ofhis life sentence following Millerv. Alabama. _ U.S. _, 132 S. Ct. 2455 (2012). On June 20,2014, respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and numerous exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he filed a reply on July 8,2014. For the reasons that follow, respondent's Motion must be granted, and the petition must be dismissed. 1. Background On April 10,1998, petitioner was convicted by a jury of one count of capital murder, one count of attempted robbery, and one countof use of a firearm in the commission of attempted robbery in the Circuit Court for the County of Accomack. Commonwealth v. Holden. Case no. CR97-141. Petitioner committed these crimes when he was seventeen years old. On June 11, 1998, he was sentenced to life in prison without parole plus tWrteen years. Both the Court of Appeals ofVirginia and the SupremeCourt of Virginiadenied his petitionfor appeal. See Holden v. Commonwealth. R. No. 1554-98-1; Holden v. Commonwealth. R. No. 991372. On September25,2000, petitioner filed a petition for a writ of habeas corpus in the trial court. Dockets.Justia.com alleging that the trial court erred in refusing to appoint a ballistics expert for the defense. The trial court found that petitioner's claim was barred by Slavton v. Parrigan. 215 Va. 27,205 S.E.2d 680 (1974), and dismissed the petition on November 30,2000. Holden v. John Tavlor. Warden. Case No. CL96-00. Petitioner did not appeal, but filed a second habeas petition in the Supreme Court of Virginia on December 20,2000. On March 19,2001, the court dismissed the petition as untimely filed. Holden v. Warden. Sussex I State Prison. R. No. 003062. Petitioner filed his first federal petitionfor a writ of habeas corpus, pursuantto 28 U.S.C. § 2254, on or about May 4,2001. See Holden v. Braxton. Case No. 1:01-cv-709-TSE. His petitionwas dismissed as time-barred on April22,2002. The United States Court of Appealsfor the Fourth Circuit dismissed the ensuing appeal on August 20,2002. Sro Holden v. Braxton. Case No. 02-6816 (4th Cir. Aug. 20,2002). On July 17,2013, petitioner filed a secondfederal petitionfor a writ of habeas corpus, assertingthat his sentenceof life imprisonment without parole, imposed for a crime committed when he was seventeen years old, violated the U.S. Supreme Court's decision in Miller. 132 S. Ct. at 2455, which held, for the first time, that the imposition of a life sentence wdthout parole on a juvenile violates the Eighth Amendment. Along with his petition, petitionerenclosed a letter stating that he had been granted authorization to file a successive § 2254 petition firom the Fourth Circuit, pursuant to 28 U.S.C. § 2244(b)(3)(A). See Holden v. Clarke. Case No. l:13-cv-897 (TSE/TRJ), Review of the Fourth Circuit's docket confirms thatthe court received petitioner's § 2244 motion on May 31,2013 and granted this motion on June 19,2013,permitting the filing ofa successive §2254 petition.' Petitioner attached his §2254 petition, executed on May 22, ' In petitioner's appeal from the dismissal ofhis second §2254 petition, the Fourth Circuit statedthat it had granted petitioner authorization to file his second petitionon June 16,2013. SeeDkt. 10, at 2. However, theOrder granting thisauthorization wasissued on June 19,2013, 2013, to his § 2244 motion, as required by Fourth Circuit Rule 22(d). ^ In re: Holden. Case No. 13-264 (4th Cir. June 19,2013). On September 20,2013, the petition was dismissed without prejudice on the groundthat petitioner had failedto exhausthis clahn beforethe Supreme Court of Virginia. See Case No. l:13-cv-897, Dkt. 3. Petitioner then appealed this dismissal, and the Fourth Cu-cuit denied a certificate of appealability and dismissedthe appeal on February20, 2014. ^ Holden v. Clarke. Case No. 13-7629 (4th Cir. Feb. 20,2014). In the meantime, petitioner filed a petition for a writ of habeas corpus raising his Miller claim in the Supreme Court of Virginia. This petitionwas dismissed as procedurally defaulted and untimely filed, pursuant to Virginia Code §§ 8.01-654(A)(2), (B)(2), on November 7,2013. Holden v. Dir. of the Deo't of Corr..R. No. 131604. Petitioner then re-filed his federal petition here on November 21,2013.^ By Order dated January 10,2014, this petition was dismissed without prejudice to petitioner's ability to move a panel of the Fourth Circuit for authorization to file a successive petition,pursuantto 28 U.S.C. § 2244(b)(2)(B). ^ Dkt. 3. On appeal, the Fourth Circuit vacated the dismissal Order, on March 11,2014, finding that his motion for authorization to file a successive petitionwas "unnecessary," as the court had "already granted Holden the requisite authorization under § 2244 [on June 19,2013]." See In re: Holden. Case No. 14-140 (4th Cir. Mar. 11,2014). Therefore, the petition was reinstated on April 30,2014, and respondent was directed to show cause why the writ should not be granted. Dkt. 9. and there is nothingon the Fourth Circuit's docketto indicate that anything occurred on June 16, 2013. ^For purposes ofcalculating the statute oflimitations, the petition isdeemed filed when petitioner places it in the prison mail system. Houston v. Lack. 487 U.S. 266 (1988). Petitioner certified that he placed his petition in fte prison mail system on November 21,2013. The court received it on December 17,2013. The sole argument petitioner raises in the instant petition is that his sentence of life imprisonment withoutthe possibility of parole, imposed for a crime committed as a juvenile, violates the Eighth Amendment under the rule in Miller. 132 S. Ct. at 2455. See, e.g.. Pet., at 6. He arguesthat Miller is a new rule of constitutional law, made retroactive to his case pursuantto Teaeue v. Lane.489 U.S. 288 (1989). Respondent argues that (1) the instantpetitionis untimely, and (2) Miller is not applicable to petitioner's case. For the reasons that follow, respondent's Motion to Dismiss must be granted, as it appears on this record that the petition is untimely filed. Alternatively, the petition fails on the merits, as the rule in this circuit is that Miller is not retroactive to cases on collateral review. IL Timeliness A § 2254 petition for a writ of habeas corpus must be dismissed if filed more than one year after (1) the judgment of conviction becomes final; (2) the removal of any state-created impediment to the filing of the petition; (3) recognition by the United States Supreme Court of the constitutional right asserted; or (4) the factual predicate ofthe claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(l)(A)-(D). As petitioner's conviction became final fifteen years ago, petitionerdoes not argue that the instant petition is timely under § 2244(d)(1)(A). Rather, he asserts that his petition is timely under § 2244(d)(1)(C), as he states that Miller established a new rule of constitutional law that is retroactive to cases on collateral review. Accordingly, whetherthis petition is timelydepends on (1) whetherpetitionerfiled the instant petition within one yearof the decision in Miller: and (2) whether Millerapplies retroactively to cases on collateral review. The timeliness ofthe instant petition is a complicated issue for which there is no dispositive controlling precedent. The timeline of this case is as follows; • June 25, 2012: The United States Supreme Court issues its decision in Miller v. Alabama. 132 S. Ct. 2455 (2012). • May 22, 2013: Petitioner signs and executes his § 2254 petition. Case No. 1:13-cv- 897 (TSE/TRJ), Dkt. 2, at 10. • May 31, 2013: The Fourth Circuit receives petitioner's motion for authorization to file a successive § 2254 Petition. Pursuant to FourthCircuitRule 22(d),petitioner's § 2254 petition is included with this Motion. ^ Case No. 13-264, Dirt. 1. • June 19, 2013: The Fourth Circuit grants petitioner's § 2244 motion, permitting him to file a successive § 2254 petition. • July 17, 2013: Petitioner mails his § 2254 petition to this Court. See Case No. 1:13-cv897, Dkt. 1-2. • September 20, 2013: This Court dismisses the petition, without prejudice, for failure to exhaust state remedies. See id Dkt. 3. • November 21, 2013: Petitioner re-files his petition in this Court. Thus, it is clear that petitioner's case was not filed here until, at the earliest, July 17, 2013, more than one year after the decision in Miller.^ His petition was therefore not timely filed. However, petitioner submitted his motion for authorizationto file a successive § 2254 petitionwithin the one-year limitations period, as the FourthCircuitreceived the petitionon May 31,2013. In addition, his § 2254 petition was attached to his § 2244 motion, so it is clear that the Fourth Circuit received the petition within the one-yearlimitations period. Whetherthe petition is timely, therefore, depends on whether the filing ofhis § 2244 motion for authorization to file a successive § 2254 petition, with his § 2254 petitionattached, tolled the one-yearstatute of limitations required by § 2244(d)(1)(C).'* ^Because the instant petition is identical to the earlier-filed petition inCase No. l:13-cv-897, it is appropriate to treat the two petitions as part of the same case. ^Ifthe filing ofpetitioner's §2244 motion tolled the one-year statute oflimitations, the period of time between May 31,2013 (when the Court of Appeals received the authorization) and June Limited case law addresses the specific question whether a § 2244 motion for authorization to file a successive § 2254 petition tolls the one-year statute of limitations. The Fourth Circuit has not yet decided this question. Other circuits have done so, but are divided. The Fifth Circuit, relying on the plain language of § 2244(b)(3)(A), has found that the filing of a § 2244 motion does not toll the one-year statute of limitations, as § 2244(b)(3)(A) clearly envisions that a petitioner "shall move in the appropriate court ofappeals" for such an order "before a second or successive application... is filed in the district court." See Fierro v. Cockrell. 294 F.3d 674,680-81 (5th Cir. 2002) (quoting § 2244(b)(3)(A)). Thus, the Fifth Circuit concluded that "the statute ... clearly contemplates that the actual [petition] will be filed in the district court rather than the circuit court," and that the application and the petition are not identical for tolling purposes. Id at 680; see also Rivera v. Ouarterman. 505 F.3d 349,353 n.5 (5th Cir, 2007). The Tenth Circuit has reachedthe oppositeresult, concluding that the pendency of a § 2244 motion for authorization to file a successive § 2254 petition tolls the running of the statute of limitations. See Easterwood v. Champion. 213 F.3d 1321, 1324 (10th Cir. 2000). The Sixth Circuit, relying on previous circuit precedent that a motion for authorization to file a successive § 2255 petition tolls the statute of limitations, has also found that the pendency of a § 2244 motion tolls the running ofthe statute of limitations. See Gihnore v. Berehuis. Nos. 13- 2008/2548, slip op., at 3-4 (6th Cir. Jan. 30,2015). 19,2013 (when the Court of Appeals granted the authorization) would be tolled. The statute of limitations thus would run from June 26,2012 through May 31,2013, atotal of 335 days, and from June 20,2013 through July 17,2013, a total of28 days. Thus, ifthe § 2244 motion tolled the one-year statute of limitations, 363 days would be counted between the Miller decision and the filing of the petition, and the petition wouldthen be tunely. If, however, the filing of the § 2244motion did not toll the statute of limitations, the limitations periodwould run continuously from June 26,2012 through July 17,2013, a total of 382 days, rendering the petition time-barred. In three opinions addressing this issue, courts in this district have followed the lead ofthe Fifth Circuit, concluding- albeit tentatively - that the filing ofa motion for authorization to file a successive § 2254 petition does not toll the statute of limitations. Dnmas v riarkp No. 2:13-cv-398,2014 WL2808807, at *8 (E.D. Va. June20,2014) (Smith, C.J.)(finding that the plain language of § 2244(b)(3)(A) counsels against tolling the statute of limitations for authorization petitions filed in the Court ofAppeals); McLean v. Clarke. No. 2:13-cv-409-AWA- TEM, 2014 WL 5286515, at *5-*6 (E.D. Va. June 12,2014) (reportand recommendation of Miller, Mag. J.) (expressly agreeing with the logic ofFierro. 294 F.3d at 681, thatthefiling of a § 2244motion does not toll the statute of limitations), report andrecommendation adopted (Sept. 29,2014) (Wright Allen, J.); Stewart v. Clarke. No. 2:13-cv-388,2014 WL 2480076, at *3 (E.D. Va. Mar. 13,2014) (relying on Fierro for the proposition that the filing of a motion for authorization does nottoll the statute of limitations), report and recommendation adopted. 2014 WL 1899771 (E.D. Va. Apr. 29,2014) (Morgan, J.). After careful review of the case law, it is clear that the resukreached by the Fifth Circuit is the correct disposition of thistolling question. This is so because Congress made clear in § 2244(d) that only statepost-conviction proceedings can operate underthe statute to toll the one-year limitations period, and it is clear that a motion for authorization to file a successive § 2254 petition filed in the Court of Appeals is not a state post-conviction proceeding. Thus, § 2244(d)'s plain language states that "[t]he 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 " 28 U.S.C. §2244(d)(2). Accordingly, it is well-settled that only post-conviction proceedings filed instate court operate to toll the one-year statute oflimitations. See Duncan v. Walker. 533 U.S. 167, 173 (2001) ("We find no likely explanation for Congress' omission of the word 'Federal' in § 2244(d)(2) other than that Congress did not intend properly filed applications for federal review to toll the limitation period."). As petitioner's motion forauthorization to file a successive § 2254 petition was a "properly filed application^ for federal review" when filed in the Fourth Circuit, the statute of limitations was not tolled during the time the Fourth Circuit considered his motion. Accordingly, petitioner is not entitled to statutory tolling for the pendency of his motionfor authorization to file a successive § 2254 petition. Butthis does not endthe inquiry, as "§ 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida. 560 U.S. 631,634 (2010^: see also Rouse v. Lee. 339 F.3d 238,246 (4th Cir. 2003). Therefore, although the pendency of petitioner's motion for authorization to filea successive § 2254 petition didnot statutorily toll theone-year limitations period, petitioner may argue for entitlement to equitable tolling. Yet, such anargument clearly fails, as no record basis exists in this case for equitable tolling. In this regard, the Fourth Circuit has held that "any resort to equity must be reserved for those instances where - due to circumstances extemal to the party's own conduct - it would be unconscionable to enforce the limitation period against the party andgross injustice would result." Id. at 246. Therefore, for equitable tolling to apply, a petitioner must establish that (1) hehas been diligently pursuing his rights, and that (2) some "extraordinary circumstance," beyond his control and extemal to his own conduct, interfered withhis ability to file his petition in a timely manner. Holland. 560 U.S. at 649 (quoting Pace v. DiGueliehno. 544 U.S. 408,418 (2005)). Nosuch extraordinary circumstances exist here; the filing ofa motion for authorization to file a successive § 2254 petition is not anextraordinary circumstance. By statute, the Fourth Cu-cuit had thirty days to issue its decision. ^ 28 U.S.C. § 2244(b)(3)(D). As the Fourth Circuitissuedits decision in 8 the instant case in a tunely fashion, no extraordinary circumstance stood in the way of petitioner's ability to file a timely petition following the issuance of Miller. Accordingly, equitable tolling does not apply to pendency ofpetitioner's motion for authorization to file a successive § 2254 petition. Because the petition was filed beyond the one-year limitations period in § 2244(d), and because equitable tolling does not apply in the instant case, this petition is untimely and must be dismissed. III. Retroactivity of Miller Although the timeliness of the petition is dispositive, it is nonetheless appropriate to consider the merits ofthe petition in the event that the timeliness analysis is mistaken.® Petitioner's sole argument in support of his § 2244 petition is that Miller announced a new constitutional rule that is retroactively applicable to cases on collateral review, including the instant petition. In general, new constitutional rules, like the one rendered in Miller, are not applicable to cases that have already become final before the rule was announced, and thus, do not apply to cases, like petitioner's, brought to the courts on collateral review. Teaeue v. Lane. 489 U.S. 288,310 (1989). This rule is subject to certain exceptions, however. First, a new rule is retroactive to cases on collateral review if the U.S. Supreme Court expressly makes it so. Second,a rule is retroactive on collateralreview if "the Court's holdings logicallypermit no other conclusion than that the rule is retroactive." Tvler v. Cain. 533 U.S. 656,669 (2001) ^The timeliness analysis proceeds on the premise that the one-year period commenced to run fi-om the date ofthe U.S. Supreme Court's issuance of Miller. It may be argued that the one-year period does not begin to run until the prison library received a copy of the Miller decision. See, e.g., Easterwood. 213 F.3d at 1323 (holding that the statute did not begin to run for purposes of the "due diligence" requirement of § 2244(d)(1)(D) until the relevant case arrivedat the prison library). The parties do not raise this issue, nor does the record reflect whenthe prisonlibrary received the decision. Given this uncertainty, it is appropriate to consider the merits ofthe petition and dismiss the petition on altemative merits grounds. (O'Connor, J., concurring); ^ dso San-Misuel v. Dove. 291 F.3d 257,260 (4th Cir. 2002) (internal citations omitted). Determining whether a rule applies retroactively in the absence of express direction from the U.S. Supreme Court requires determining whether the rule fits into the two exceptions identified in Teague. UnderTeaeue. a rule is retroactive if: (1) it is substantive, rather than procedural, or (2) it is a "'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Whorton v. Bocktine. 549 U.S. 406,416 (2007) (alterations in original) (internal citations omitted); s^ also Teaeue. 549 U.S. at 307. At the time this petition was filed, six decisions from this district had held that Miller does not apply retroactively to cases pending on collateral review. See Dumas. 2014 WL 2808807; Landrvv. Baskerville. No. 3:13-cv-367,2014 WL 1305696 (E.D. Va. Mar. 31,2014); Stewart 2014 WL 2480076; Sanchez v. Vareo. No. 3:13-cv-400,2014 WL 1165862 (E.D. Va. Mar. 21,2014); Contreras v. Davis. No. I:13cv772,2013 WL 6504654 (E.D. Va. Dec. 11,2013) (Cacheris, J.); Johnson v. Ponton. No. 3:13-cv-404,2013 WL 5663068 (E.D. Va. Oct. 15,2013). On November 12,2013, Johnson was appealed to the Fourth Circuit. See Case No. 13-7824. On March 5,2015, the Fourth Circuit issued a decision in Johnson, finding that the rule in Miller is not retroactive to cases on collateral review. See Johnson v. Ponton. CaseNo. 13-7824, slip op., at 2 (4th Cir. Mar. 5,2015). In reaching this result in Johnson, the Fourth Circuit found that the rule in Miller was clearly procedural, rather thansubstantive. A ruleis substantive if it "alters the range of conduct or the class ofpersons thatthe lawpunishes." Schriro v. Summerlin. 542 U.S. 348,352 (2004). The Fourth Circuitfound that the rule m Miller, ratherthan prohibiting all juvenile offenders to be sentenced to lifewithout parole, prohibited such a sentence without expressly taking into 10 account an offender's age. See Johnson, slip op., at 13 (quoting Miller. 132 S. Ct. at 2458,2569, 2471). Thus, the court found the rule in Miller did not alter a specific class of individuals able to receive a certain punishment, but merely placed limits on the procedure used to impose sentences. The Fourth Circuit also found that the Miller rule was not a "watershed rule of criminal procedure," as "the Supreme Court 'has repeatedly emphasized the rarity of new bedrock rules of procedure.'" Johnson, slip op., at 14 (quoting United States v. Sanders. 247 F.3d 139,148 (4th Cir. 2001)). Specifically, the Fourth Circuit concluded that, because the rule in Miller was a direct result of previous Supreme Court precedent, the rule did not break new ground and did not qualify under the second Teaeue exception. See id. Because the controlling rule in this circuit is now that Millerdoes not apply retroactively to cases on collateral review, the instant petition must be dismissed on its merits, as well as its timeliness. IV. Conclusion For the reasons stated above. Respondent's Motion to Dismiss must be granted, and the petition must be dismissed. An appropriate Judgment and Order will issue. Entered this day of_ 2015. Alexandria, Virginia T. S, Ellis, m . United States DistrictJudge 11

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