Drew v. Johnson, No. 3:2011cv00843 - Document 26 (E.D. Va. 2013)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 7/18/13. Copy sent: Yes(tdai, )
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Drew v. Johnson Doc. 26 IN THE UNITED FOR THE STATES DISTRICT I E COURT L E JUL 2 2 2013 EASTERN DISTRICT OF VIRGINIA Richmond Division CLERK, U.S. DISTRICT COURT RICHMOND. VA TROY DEWYON DREW, Petitioner, Civil Action No. v. GENE M. 3:11CV843 JOHNSON, Respondent. MEMORANDUM OPINION Troy Dewyon 28 U.S.C. which § 2254 the executed ground Drew, that, governing ("§ 2254 Virginia his v. Drew, of inter the federal alia, habeas petition challenging Corrections Respondent moves to one-year petitions the to the manner in ("VDOC") dismiss statute bars pursuant of has on the limitations § 2254 Petition. The matter is ripe for disposition. PROCEDURAL HISTORY Pertinent State Proceedings On July 23, of Petition") Department I. City this sentence.1 Drew has responded. A. brings 1996, Portsmouth No. December 10, ("Circuit CR96-1477, 1996, Drew was convicted in the Circuit of the at 1 Court") (Va. of Cir. robbery. Ct. Dec. Commonwealth 10, 1996). On the Circuit Court sentenced Drew to an active 1 The Court employs the pagination assigned to this document by the Court's CM/ECF docketing system. The Court corrects the capitalization to the quotations to the § 2254 Petition. Dockets.Justia.com term of imprisonment of seven (7) (hereinafter "the 1996 Sentence"). On July another 1997, robbery commission 01, 15, of a felony. CR96-1823-02, Circuit Court imprisonment Sentence"). Aff.") at for Id. of Court use found of Commonwealth v. 1-2 (Va. sentenced Cir. Drew those that to Ct. a Drew guilty of firearm Drew, Oct. Nos. 21, eighteen offenses December the (ECF No. 16-4) (18) 31, 1997, Drew was Supp. Mot. SI 4. ) Update Encl. reflected that and seven (7) consecutively. the CR96-1823The years "the of 1997 transferred to the Dismiss Ex. On or about February 4, from the VDOC which A, Drew's months at 1.) "TOTAL and (Brown Aff. Specifically, SENTENCE" that all Encl. A, of the eighteen his sentences listed a sentence start date of April 22, ("Brown 1998, Drew (Id. Legal was at 1-2.) C reflected how the VDOC intended to execute his 1996 and 1997 Sentences. Aff. in 1997). {hereinafter (Mem. VDOC. received a Legal Brown offense at 1. On or about custody of and for Id. the Circuit offense months (18) SI 5; Update years would run The Legal Update 1996. (Id. at l.)2 The Legal Update further reflected that Drew had 618 jail credit 2 Thus, the VDOC commenced the running of Drew's sentences from his initial incarceration in the Portsmouth City Jail on April 22, 1996, prior to actual imposition of the 1996 Sentence. days and his day adjusted Over the anticipated good time release date with a thirtydischarge ensuing was years, February Drew was 27, 2013. convicted institutional offenses which has resulted in (Id. of a at 1-2.) host forfeiture of of good time credits and periods of time where Drew failed to earn any good time credits. (See Mem. Supp. Mot. Dismiss Ex. A Encl. D (ECF No. 16-2) passim.)3 B. On Federal Habeas Petition or around October 30, Petition in this Court. 2011,4 In the § 2254 Drew filed his Petition, § 2254 Drew makes the following claims for relief: Claim One "Petitioner states the Defendant has not given Petitioner any of the preconviction or postconviction jail credit he (Petitioner) served while in jail which was 618 days." (§ 2254 Pet. 5.) 3 In 2010, Drew filed a petition for a writ of habeas corpus in the Circuit Court. It is unnecessary to recount the history of those proceeding because the statute of limitations had expired almost a decade earlier. See infra Part II.B. 4 The Court deems a § 2254 petition filed on the date that an inmate places the petition in the prison mailing system for mailing to the Court. See Houston v. Lack, 487 U.S. 266, 276 (1988) . Drew swears that placed his § 2254 Petition in the prison mail system on August 24, 2011. (§ 2254 Pet. 16.) The Court, however, did not receive the § 2254 Petition until December 19, 2011. (Id. at 1.) The in forma pauperis affidavit that accompanied the § 2254 indicates that it was not executed until October 30, 2011. (ECF No. 1-2, at 1.) Therefore, Drew could not have placed his § 2254 Petition in the prison mail system for mailing to the Court before that date. Claim Two "Petitioner states Defendant did preconvictionally - postconvictionally Plaintiff's 7 month jail sentence served." Claim Three (IcL "Petitioner not credit already at 7.) states that the states Defendant ranned [sic] Petitioner[']s 7 month time served conviction consecutively with his 18yr. sentence which he[']s serving making his 18yr. sentence excessive been [sic] such sentence has already been served and was never an [sic] sentence ordered by the courts order." (Id^ at 8.) Claim Four Initially, the Court notes that pertaining to allegedly inadequate a writ No. 3:02CV435, 2002) sentencing "Petitioner states that the defendant is failing to provide Petitioner with an [sic] medical diet in keeping with Petitioner[']s needs . . . ." (Id^ at 10.) for consecutive in its of habeas 2002 (concluding WL care See 32362032, McCain at for medical Drew cannot pursue medical corpus. a petition serious *l-2 a writ (E.D. of claims in a petition v. Garrity, Va. habeas July 16, not the is appropriate vehicle for challenging allegedly inadequate medical care). prejudice § 1983.5 Accordingly, to pursuing Claim as a Four claim As explained below, the remainder of Drew's will for be dismissed relief under 42 without U.S.C. the statute of limitations bars claims. 5 The statute provides, in pertinent part: Every person statute ... of any who, State under color . . . subjects, of any or causes II. A. ANALYSIS Statute Of Limitations Respondent contends that the federal statute of limitations bars Drew's Effective claim. Death Section Penalty Act 101 of ("AEDPA") the Antiterrorism amended 28 U.S.C. and § 2244 to establish a one-year period of limitation for the filing of a petition for pursuant to U.S.C. a writ the § 2244(d) 1. of habeas judgment of a corpus state by a court. person in custody Specifically, 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. 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 on which the impediment to filing an application created by State action or in laws violation of the of the United Constitution States is removed, if the applicant was prevented from filing by such State action; to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law .... 42 U.S.C. § 1983. 28 (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). B. Running Of The Statute Of Limitations Because rather Drew than the challenges judgment of the execution conviction, of section his sentence 2244(d)(1)(D) controls the date on which the limitation period commences. See Childs Va. Dec. v. Johnson, 2010) Cir. (quoting Wade v. 2003)). claims (citing is 3:09cv793, "[T]he [the] Wade, 327 F.3d calculation at the exercise of due 5186757, 327 factual at F.3d 328, predicate of 333). therefore began running on the date through WL Robinson, relevant VDOCs 2010 his The *3 (E.D. 332-33 for [Drew's] sentence." limitations (4th Id. period Drew could have discovered, diligence, calculation of his sentence by the VDOC. the allegedly illegal The February 4, information failed to he 1998 Legal to pursue needed properly award him Update his claims credit time served (Claims One and Two) provided Drew against any the VDOC had sentence that with for his or that the VDOC had improperly required him to serve his sentences consecutively (Claim Three). Thornton v. Dir. of Va. WL 589007, at *2 at 333) . Dep't of Corr., Accordingly, 1999, to failed years current file his § that Petition, 2254 date, unless claims for Petition 7:12-cv-00443, (citing Wade, Drew had one year, his after § 2254 (W.D. Va. Feb. 14, 2013) bring to No. until statute of Drew 327 F.3d or until February of relief. the 2013 demonstrates more Because than limitations entitlement Drew ten (10) bars the to some later commencement date or equitable tolling. Neither Drew nor the warrant record suggests commencement Accordingly, of the any circumstances limitation that period the Motion to Dismiss or equitable a later tolling. (ECF No. 15) will be granted. The petition for a writ of habeas corpus will be denied and the action will be dismissed. Drew's Motion for an Evidentiary Hearing (ECF No. 19), Motion to Strike (ECF No. 20), two Motions for Sanctions (ECF Nos. 21, 22), and Motion for Rehearing En Banc6 (ECF No. 25) will be denied. 6 In the Motion for Rehearing En Banc, the Court revisit the December 21, 2012 Drew requests that Memorandum Order which An appeal may not be taken from the final order in a § 2254 proceeding unless ("COA") . 28 a judge issues a certificate of appealability 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. § 2253(c)(2). requirement debate whether (or, should have issues presented been proceed further.'" for that resolved were only when fails to matter, in a ^adequate meet this agree different to Slack v. McDaniel, (quoting Barefoot v. Estelle, Drew "reasonable jurists that) the manner or deserve 529 U.S. 463 U.S. A petitioner A petition that the encouragement 473, 484 880, 893 & n.4 standard. could 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 Drew and counsel for Respondent. Robert E. /s/ Payne /£*/ Senior United States District Judge Richmond, Virginia °ate: ^'*,^ denied Drew's Motion for Summary Judgment and Motion Temporary Restraining Order. (Mot. Reh'g En Banc 1-2.) for a
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