Piggott v. Kelly, No. 3:2011cv00432 - Document 16 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/17/12. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CHRISTOPHER RYAN PIGGOTT, Petitioner, v. Civil Action No. 3:11CV432 LORETTA KELLY, Respondent. MEMORANDUM OPINION Christopher proceeding pro § 2254 City, se, ("§ 2254 Circuit Court Ryan brings Petition") of the Virginia Piggott, this a Virginia state petition pursuant challenging his to prisoner 28 U.S.C. convictions in the City of Williamsburg and County of James ("Circuit Court"). Respondent moves to dismiss on the ground that the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. responded. Piggott has The matter is ripe for disposition. I. PROCEDURAL HISTORY The Circuit Court convicted Piggott of one count of hit and run, one count of attempted capital murder of a police officer, one count of assault and battery of a police officer, of eluding police, convicted felon. Cir. Ct. July 16, one count and one count of possession of a firearm by a Commonwealth v. 2007). On July Piggott, No. 15372, 16, 2007, the at 1 {Va. Circuit Court sentenced Piggott to an active term of twenty-seven years of imprisonment. Id. Piggott appealed his convictions for hit and run, attempted capital murder of a law enforcement officer, and assault and battery of a law enforcement officer to the Court of Appeals of Virginia. Piggott v. Commonwealth, No. 1797-07-1, at 1 (Va. Ct. App. Sept. 23, 2008).x The Court of Appeals of Virginia affirmed Piggott's conviction for attempted capital murder of a police officer and "denied those parts of [his] the convictions of hit enforcement petition for appeal with regard to judgment pertaining and run and assault officer." Id. (internal to [Piggott's] and battery of a law citations omitted). On April 1, 2009, the Supreme Court of Virginia refused Piggott's petition for appeal. (Va. Apr. A. Piggott v. Commonwealth, No. 082008, at 1 1, 2009). Piggott's State Habeas Petitions On May 3, 2010, the Circuit Court received a petition for a writ of habeas September 28, corpus 2010, ("First the Petition") Circuit Court from Piggott. dismissed the On First Petition as untimely pursuant to section § 8.01-654(A)(2) of the and Piggott did not appeal his convictions for eluding police possession of a firearm by a convicted felon. Piggott, No. 1797-07-1, at 1. Virginia Code.2 (Va. Cir. Ct. 256, 258 (Va. Virginia Piggott v. Sept. 2010) 2002)). refused Piggott 28, Kelly, Warden, No. 10-52600, at 3 (citing Haas v. On May 19, Piggott's 2011, subsequent Lee, 560 S.E.2d the Supreme Court of petition for appeal. v. Kelly, Warden, No. 102407, at 1 (Va. May 19, 2011). On July 13, 2011, Piggott submitted a second petition for a writ of habeas corpus to the Circuit Court ("Second Petition"). On September 2011, the Circuit inter Petition, 8, alia, as untimely § 8.01-654(A)(2). Piggott v. (Va. Cir. Ct. Sept. Court dismissed pursuant to the Second Virginia Code 8, 2011). B. Warden, No. 11-857, at 3-4 Piggott's Federal Habeas Petition On June 25, 2011, Court.3 Kelly, Piggott filed his § 2254 (§ 2254 Pet. 15.) Petition in this In the § 2254 Petition, Piggott makes the following claim for relief: 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 2010). 3 The Court deems the petition filed on the date Piggott swears he placed the petition in the prison mailing system. Houston v. Lack, 487 U.S. 266, 276 (1988). See Ineffective assistance of counsel violated [Piggott's] rights under the Sixth [4] and Fourteenth[5] Amendments, based on pretrial counsel's factual preparation to failure to conduct an adequate and legal investigation in file [a] motion for mental evaluation on [the] crucial issue of [Piggott's] sanity at the time of the crime and [his] competency to stand trial. § 2254 Pet. 4 (capitalization corrected).) II. A. ANALYSIS Statute Of Limitations Respondent contends that the federal statute of limitations bars Piggott's Effective claim. Section Death 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 corpus by a person in custody pursuant to the judgment of a state court. U.S.C. § 2244(d) 1. Specifically, 28 now reads: 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. from the The limitation period shall run latest of "In all criminal prosecutions, the accused shall enjoy the right U.S. ... Const, liberty, Const, to have the Assistance of Counsel amend. for his defence." VI. "No State shall . . . deprive any person of life, or property, without due process of law . . . ." U.S. amend. XIV, § 1. 4 (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 on which the impediment to filing an application created by State action in violation or laws of the of the Constitution United 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. § 2244(d). Commencement Of The Statute Of Limitations Piggott's AEDPA on judgment Wednesday, petition for States. Hill ("[T]he one-year 1, July certiorari v. became in Braxton, limitation final 2009, the 277 for the Supreme F.3d 701, period begins the purposes last day to Court of the 704 (4th running Cir. when of the file a United 2002) direct review of the state conviction is completed or when the time for seeking direct review § 2244(d)(1)(A)}); has Sup. expired Ct. R. . . . ." 13(1) (citing (petition for 28 U.S.C. certiorari should be filed within ninety days of entry of judgment by state court of review). July 1, last resort Accordingly, or of the order denying Piggott had one year, discretionary or until Thursday, 2010, to file a petition pursuant to 28 U.S.C. § 2254. Piggott did not file his § 2254 Petition until June 25, 2011. C. To Statutory Tolling toll the "properly file[ statute of court as untimely 8 (2000). fails to within the meaning of the AEDPA. 408, 417 a prisoner must ]" a state court petition for collateral review. Artuz v. Bennett, 531 U.S. 4, state limitations (2005) A petition denied by a qualify as "properly Pace v. DiGuglielmo, (internal quotation marks omitted).6 filed" 544 U.S. Though Piggott submitted the First Petition to the Circuit Court prior to the expiration of the AEDPA statute of limitations, the Circuit Court dismissed the First Petition for failure to comply 6 Piggott asks this Court to review the Circuit Court's decision to deny his petition as untimely pursuant to Va. Code § 8.01-654(A)(2). However, "[i]t is beyond the mandate of federal habeas courts ... to correct the interpretation by state courts of a state's own laws." Sharpe v. Bell, 593 F.3d 372, 383 (4th Cir. 2010) (citing Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008)); see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). with Virginia's petitions. Cir. statute Piggott Ct. Sept. v. 28, 654(A)(2); Haas v. of limitations Kelly, 2010) Warden, (citing governing No. 10-52600, Va. Code. Ann. First did not toll the AEDPA statute of limitations. Second because 148148, Petition did the AEDPA statute filing.7 Deville v. of not warrant limitations Johnson, § 8.01- Thus, Petition, Pace, it 544 U.S. F.3d 1256, Petition. ran 1259 for (11th 724 days Accordingly, belated Cir. unless commencement or tolling (CMH/TRJ), its 2010 WL (citing Webster v. Moore, 2000)). before statutory expired prior to No. I:09cv72 at *2 (E.D. Va. Jan. 12, 2010) limitations to (Va. 417. The 199 at 3 Lee, 560 S.E.2d 256, 258 (Va. 2002)). because Piggott failed to properly file the at habeas Thus, Piggott the filed statute the of § 2254 Piggott demonstrates entitlement equitable tolling, the statute of limitations will bar his § 2254 Petition. D. Belated Commencement In addition to the date on which a judgment becomes final, federal law commence on 7 provides "the date Furthermore, that on the the which Circuit statute the of limitations impediment Court to dismissed filing the may an Second Petition for, inter alia, failure to comply with Virginia's statute of limitations on habeas petitions. Piggott v. Kelly, Warden, No. 11-857, at 2-3 (Va. Cir. Ct. Sept. 8, 2011). Thus, Piggott failed Circuit Court. to properly Pace, 544 U.S. file the at 417. 7 Second Petition in the application created Constitution or by laws of State the action in violation United States is of removed, the if the applicant was prevented from filing by such State action." U.S.C. § 2244(d)(1)(B). limitations, both and (1) state requires: (2) violated the Constitution or laws Ocon-Parada v. Young, Va. To delay the running of the statute of § 2244(d)(1)(B) (3) prevented the July 23, F.3d 1328, 2010) 1331-32 28 prisoner from No. 3:09cv87, filing Fla. that of the United States a habeas 2010 WL 2928590, (citing Johnson v. (11th Cir. action petition. at *2 (E.D. Dep't of Corr., 513 2008)). Piggott asserts that: During the months of March, April, and May of 2010, Mr. Piggott was assigned to a non-privilege housing unit at Sussex I State Prison where he was placed on 22 hour lockdown and restricted from communicating with jailhouse lawyers and [had] absolutely no access to the law library and to legal material. (Pet'r's Traverse (Docket No. 15) 2 (capitalization corrected).) Piggott appears to claim that the three months he spent in "non- privilege housing" prevented court habeas petition.8 him from filing a (Id.; § 2254 Pet. 14.) timely state Thus, Piggott 8 As explained above, this Court cannot review the Circuit Court's determination that the First Petition was untimely pursuant to Virginia's statute of limitations governing habeas petitions. See supra Part 11(C) n.6. argues, this Court should grant him a belated commencement of the AEDPA's statute of limitations. 1. State-Created Impediment In Violation Of The Constitution The Court doubts that allegations of the ilk advanced by Piggott adequately demonstrate his first two requirements under 28 U.S.C. § 2244(d)(1)(B): a state-created impediment "in violation of the Constitution or the laws of the United States." 28 U.S.C. § 2244(d) (1) (B); 204 F.3d 1086, prisoner (11th Cir. 2000) law v. United States, ("The mere inability of a unconstitutional impediment."); but see Egerton v. Cockrell, 334 438-39 the Akins an 433, access e.g., itself, F.3d to 1090 see, (5th library Cir. 2003) is not, ("[A] in state's failure to provide the materials necessary to prisoners to challenge their convictions or confinement, in this case a copy of the very statute that is being used to render time-barred, invoking exists, petition an 'impediment' for § 2244(d)(1)(B)."). Because no "'abstract, legal assistance'" freestanding Finch constitutes [the prisoner's] right to a law library v. Miller, 491 F.3d or 424, 427 purposes (8th Cir. of 2007) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)), Piggott must show that his segregation in the "non-privilege housing" (§ 2254 Pet. 14) violated his constitutional 9 right to access to the courts. claim See that government a Akins, 204 prison F.3d lockdown impediment at 1090 (rejecting petitioner's constituted denying him access an to unconstitutional the courts because he failed to show that the lockdown violated the Constitution). Nevertheless, the constitutionality of Court the need state action not here resolve because the Piggott cannot demonstrate success on the final prong: that such action actually § 2254 See prevented Ramirez from Yates, v. him 571 (emphasizing that state petitioner] F.3d presenting from timely filing 993, action must his a 1001 (9th "altogether claims in any Petition. Cir. 2009) prevent[ form, ] to [a any court" to trigger § 2244(d)(1)(B)). 2. Demonstration That Impediment Prevented Federal Even Habeas if circumstances Alleged Petitioner State-Created From Filing A Petition alleged by Piggott claim of unconstitutional state action, could support a Piggott fails to assert any specific facts showing how the three-month lockdown between March and May of 2010 inhibited him from submitting a § 2254 Petition until June 25, 2011 nearly two years after the Circuit Court entered judgment.9 "[Section 2244(d)(1)(B)] demands that a 9 Piggott claims that, because federal petitions require state exhaustion, any impediment to his state petition impeded his federal petition. (§ 2254 Pet. 14-15.) However, 10 state-created extending federal Cir. exception, habeas 2007) Cir. impediment to 'prevent' relief." Wood animate a v. see 2007 Potter WL v. 749674, Spencer, *4 filing F.3d 1, for 7 (1st 633 F.3d 630, States, (E.D. limitations- from 487 296 United at the prisoner (citing Lloyd v. Van Natta, 2002)); l:06cvl57, must, (7th Nos. I:03cr595, Va. Mar. 5, 2007) (rejecting petitioner's claims that his placement in a holding facility for four months institution lawyers with no and access constituted a filing a habeas period he alleges to subsequent legal relocation materials government-created Akins, 204 F.3d at 1090)). and his or to an jailhouse impediment (citing Here, Piggott succeeded in executing petition in state unconstitutional court state during action the same prevented Piggott from filing an application for habeas relief.10 These the Supreme Court has explained that where a petitioner has reasonable confusion about his obligation to exhaust his state remedies, but was concerned about the running of the federal statute of limitations, the petitioner should file a "'protective' petition in federal court [ ] asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted." Qcon-Parada, 2010 WL 2928590, at *3 n.10 (quoting Pace, 544 U.S. at 416). Piggott failed to file any protective petition in federal court. 10 Piggott provides no explanation why the Circuit Court did not receive his First Petition, 2010, until May 3, 2010. which he executed on April 12, State 11 Petition for Writ of Habeas facts refute the assertion that state action prevented him from filing any habeas petitions, F.3d at 1000-01; Cir. 2000) petition state or federal. Felder v. Johnson, (noting before that the the removal 204 F.3d 168, petitioner's of See Ramirez, the 171 n.9 filing alleged a 571 (5th habeas state-created impediment suggests that the state action did not prevent him from filing a petition). Nothing in Piggott's submissions explains how the alleged state impediment arising from his three months in "non-privilege housing" (§ 2254 Pet. § 2254 Petition. 14) Thus, actually prevented him from filing a Piggott fails to demonstrate entitlement to a belated commencement of the statute of limitations pursuant to 28 U.S.C. E. § 2244(d)(1)(B). Equitable Tolling Petitions pursuant equitable tolling. 2560 (2010). to 28 U.S.C. See Holland v. The Supreme Court § 2254 Florida, has are subject 130 S. "made Ct. clear to 2549, that a 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, (2) that some extraordinary circumstance stood in his way' prevented timely filing." at 418). Corpus, Id. at 2562 and and (quoting Pace, 544 U.S. An inmate asserting equitable tolling "'bears a strong Piggott executed Apr. 12, v. Kelly, Warden, 2010) . 12 No. 10-52600 (Va. Cir. Ct. burden to show specific facts'" both elements of the test. (10th Cir. 2008) (11th Cir. that Yang v. Archuleta, (quoting Brown v. Barrow, he fulfills 525 F.3d 925, 928 512 F.3d 1304, 1307 2008)). Piggott does not attempt to entitlement to equitable tolling. Supp. 2d 724, between demonstrate 727-28 prison (E.D. Va. facilities, explain a basis See Allen v. 2009 (Ellis, solitary for Johnson, J.) his 602 F. ("' [T] ransfers confinement, lockdowns, restricted access to the law library and an inability to secure court documents do not qualify as extraordinary circumstances.'" (quoting Warren 2002))). with v. Moreover, diligence Kelly, 207 F. Supp. 2d 6, Piggott fails to demonstrate that in filing his § 2254 Petition. Piggott does not qualify for equitable tolling. fails to demonstrate commencement or 10 any equitable meritorious tolling, the he acted Accordingly, Because Piggott grounds § 2254 (E.D.N.Y. for belated Petition will be denied as untimely. III. For the foregoing CONCLUSION reasons, (Docket No. 8) will be granted. be denied, Respondent's Piggott's § 2254 Petition will and the action will be dismissed. 13 Motion to Dismiss 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 right." satisfies this 28 U.S.C. requirement debate whether (or, should have issues presented been proceed further.'" (quoting Barefoot Piggott fails to for were only when that resolved § 2253(c)(2). matter, in a 'adequate Estelle, meet this agree different to Slack v. McDaniel, v. "reasonable 463 the manner or could petition that encouragement 529 U.S. standard. jurists that) deserve U.S. A petitioner 880, 473, 893 A 484 n.4 the to (2000) (1983)). certificate of appealability will therefore be denied. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Piggott and counsel for Respondent. /s/ tsf Robert E. Payne Senior United States District Judge Richmond, Virginia Date $kx^/?/&>; V 14
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