Scott v. Clark, No. 3:2014cv00134 - Document 7 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 11/25/2014. (tjoh, )
Download PDF
<![CDATA[
Scott v. Clark Doc. 7 __L_J_[nl IN THE UNITED m 26 2014 ^ STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA CLERK, U.S. DISTRICT COURT Richmond Division RICHMOND. VA DEMOND WAYNE SCOTT, Petitioner, v. Civil Action No. HAROLD W. 3:14CV134 CLARKE, Respondent. MEMORANDUM OPINION Demond Wayne with counsel, P§ 2254 Scott, a Virginia state prisoner brings this petition pursuant to 28 Petition," ECF No. probation revocation. 1) challenging his proceeding U.S.C. October Respondent moves to dismiss, § 2254 3, 2008 inter alia, on the ground that the one-year statute of limitations governing federal habeas not responded. petitions bars In Virginia § 2254 Petition. Scott has The matter is ripe for disposition. I. A. the PROCEDURAL HISTORY State Proceedings1 2000, the Circuit Court of ("Circuit Court") convicted the County Scott of of Lancaster, possession with the intent to distribute crack cocaine and felony obstruction of justice and sentenced Scott to thirty years in prison, with 1 The Court notes that Scott provides an incomplete and misleading chronology of the state court proceedings. Accordingly, the Court relies solely on the state court records forwarded to the Court by each tribunal. Dockets.Justia.com twenty-four years No. CR99000286 2000). & suspended. CR99000287, As explained below, Commonwealth at 1-3 (Va. Cir. v. Scott, Ct. Apr. 17, Scott thereafter repeatedly violated the terms of his probation leading to three revocations of his probation. After his the Circuit release Court from incarceration, found Scott in on October 27, violation of the 2006, terms of probation and revoked twelve months of his previously suspended sentence, requiring Commonwealth v. (Va. Cir. Court Dec. he No. 8, found only six months in prison. CR99000286-01 & CR99000287-01, Scott five but serve 2006). revoked probation, sentence, Scott, Ct. again that On April in violation years re-suspended 25, the of of the 2008, the the five-year Circuit terms previously sentence, at 1-3 of his suspended conditioned on, inter alia, the completion of the Detention Center Program. Commonwealth v. Scott, (Va. entered Cir. later, Ct. on July 29, No. CR99000286-02 & CR99000287-02, June 2008, 13, 2008) . A mere three at 1-3 months Scott's probation officer notified the Circuit Court that Scott had violated the terms of his probation because he was in battery Greene, Jr., upon removed from the detention program for engaging another Probation Lancaster Commonwealth v. and detainee. Parole Commonwealth Scott, No. See Officer, Attorney, Letter to C. from Michael Jeffers Attachment CR99000286-02 & 2, D. Schmidt, at 1-2, CR99000287-03 (Va. Cir. Ct. Court filed Aug. found Scott revoked all him serve to of 1, 2008). in his the imprisonment. On October 3, 2008, violation previously remaining of the terms suspended twenty Commonwealth v. of the Circuit his sentence, years Scott, and No. probation, and six ordered months CR9900028 6-03 of & CR99000287-03, at 1-3 (Va. Cir. Ct. entered Nov. 5, 2008).2 Scott appealed. Virginia refused Commonwealth, No. On April On his April 30, petition 2010, for 092167, at 1 (Va. Apr. 29, 2011, Scott filed habeas corpus in the Circuit Court. Corpus at filed Apr. dismissed 16, Scott 29, the v. Pearson, 2011) . On petition No. CL11000040, at 1-2 as the Supreme Court appeal. of Scott v. a of 30, 2010). a petition for writ Petition for Writ of Habeas No. August CL11000040 5, untimely 2011, the filed. (Va. Cir. Ct. Aug. 5, (Va. Cir. Circuit Scott 2011). v. Ct. Court Pearson, Scott filed no appeal of this decision. B. Federal Habeas On February 27, Petition in this § 2254 Petition, Petition 2014, Court. Scott, (§ by counsel, 2254 Pet. 15, filed his § 2254 ECF No. 1.) In his Scott contends: 2 The Circuit Court explained that the "original sentence was fair for the crime [. opportunities and programs to cannot take Defendant] has had numerous avoid sentence & will not or advantage." Sentencing Revocation Report at 2, No. CR99000286-03 & CR99000287-03, at 1-3 Commonwealth v. Scott, (Va. Cir. Ct. entered Oct. 3, 2008). Claim One: The Circuit Court's imposition of the previously suspended twenty-three-year and six month sentence violates the Eighth Amendment.3 Claim Two: "VA Code § 19.1-298.01 unreasonable, in arbitrary violation process [4] of by subsection F Scott for subsection A is and rendered capricious substantive the inclusion due of a barring redress to Mr. blatant disregard of requirements." (§ 2254 Pet. 8.)5 Claim Three: "Mr. Scott's prerogatives were materially impaired by ineffective assistance of counsel [6] sentencing." should when have he (Id. moved realized at trial and at 9.) for a that Counsel continuance a substitute judge would be presiding revocation hearing. Claim Four: Counsel by rendered failing Circuit to over ineffective pursue Court's an denial assistance appeal of the his of the habeas petition. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const, amend. VIII. 4 "No State shall . . . deprive any person of life, liberty, or property, amend. XIV, without due process of 5 Scott challenges contends law . . . ." U.S. Const, § 1. to that confusingly state the sentencing Scott § 2254 Pet. frames sentencing Circuit to his Claim law, Court remaining Two but abused at as due its core, its suspended process Scott discretion sentence. in (See 8.) 6 "In all criminal prosecutions, the accused shall enjoy the right U.S. ... to have the Assistance of Counsel Const, amend. VI. for his defence." II. A. ANALYSIS Statute Of Limitations Respondent contends that the federal statute of limitations bars Scott's Effective claims. 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. 1. a writ the § 2244(d) of habeas judgment of a corpus state by a person court. 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; (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) or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 2. 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 U.S.C. Scott's when the Statute Of Limitations Under 28 § 2244(d) (1) (A) judgment became time to file a expired. Hill v. Braxton, ("[T]he one-year final on Thursday, petition 277 limitation for F.3d period a July writ 701, 704 begins 29, of certiorari (4th running 2010, Cir. when 2002) direct review of the state conviction is completed or when the time for seeking direct review § 2244(d)(1)(A))); for certiorari see to be has expired Sup. Ct. filed . R. . . ." 13(1) within (citing 28 U.S.C. (requiring a petition ninety days of entry of judgment by state court of last resort or of the order denying discretionary review). Friday, July 29, 2011, C. properly filed the (2) pertinent application is are had one year, or until to file a federal habeas petition. statutory tolling, judgment. 28 ^properly filed' Artuz v. an action must be a (1) post-conviction or other collateral review of in compliance with the filings." therefore, No Entitlement To Statutory Tolling To qualify for (3) Scott, Bennett, U.S.C. § 2244(d)(2). "[A]n when its delivery and acceptance applicable laws 531 U.S. 4, 8 and rules governing (2000). These rules and laws "usually document, the office in which fee." Id. prescribe, time it limits must for upon be (footnote omitted) example, its lodged, delivery, and the within the meaning of the AEDPA. 417 (2005) petition is (citation untimely under state law, of the court and requisite A filing petition that not "properly filed" Pace v. omitted) form the (citing cases). is denied by a state court as untimely is 408, the DiGuglielmo, ("When 544 U.S. postconviction [is] that a the end of the matter for purposes of § 2244(d)(2)"). Scott filed Nevertheless, his state habeas petition on April 29, 2011. because the Circuit Court dismissed Scott's habeas petition as untimely under Va. Code Ann. § 8.01-654(A) (2),7 see Scott v. (Va. Cir. Pearson, No. CL11000040, at 1-2 Ct. Aug. 5, 2011), Scott's habeas petition was not properly filed and fails to toll the limitation period. See Pace, 544 U.S. at 417.8 7 The Circuit Court's opinion contains a clerical error and cites section 8.01-654 (B) (2) of the Virginia Code which proscribes successive habeas petitions. The Circuit Court clearly intended to cite section 8.01-654(A)(2) of the Virginia Code which provides, in relevant part, that "[a] petition for writ of habeas corpus ad subjiciendum, other than a petition challenging a criminal conviction or sentence, shall be brought within one year after the cause of action accrues." Va. Code Ann. § 8.01-654(A)(2). In dismissing the opinion the Circuit Court stated: "Because the petition challenges a probation revocation rather than a criminal conviction and sentence, the statute of limitations expired on October 3, 2009, more than a year prior to the filing of the present action." Scott v. Pearson, No. CL11000040, at 1-2 (Va. Cir. Ct. Aug. 5, 2011). 8 "The limitation period for challenging revocation proceedings habeas is one year corpus petitions after the cause Thus, the date 2011. the limitation period ran from Friday, his revocation failed to Scott February became file the 27, expiration 2014, of the nearly bars the entitlement to belated a under 28 U.S.C. § 2254 and present two limitations limitations final, and a half on July 30, Petition until years after the the statute of Thus, unless commencement § 2244(d)(1)(B)-(D) expired § 2254 period. Petition July 30, 2010, Scott of the demonstrates limitation period or equitable tolling. Scott suggests his circumstances require equitable tolling. D. Equitable Tolling Petitions equitable 2560 pursuant tolling. (2010). ^petitioner' Ml) that (2) that See The is he Supreme the v. v. Court § 2254 Florida, has been pursuing his order Dir. of "made stood Dep't subject S. Ct. clear to 2549, that a only if he shows diligently, and in and his way' Id. at 2562 (quoting Pace, 544 U.S. Code § 8.01-654(A)(2). [October 3, 2008] when under are 130 rights extraordinary circumstance of action accrues. action accrued on Brooks U.S.C. Holland prevented timely filing."9 entered 28 ^entitled to equitable tolling' has some to which of [Scott] Corr., is 727 [Scott's] cause of the circuit court currently S.E.2d 650, detained." 651 (Va. 2012) . 9 Thus, a petitioner must show a causal connection between the extraordinary circumstance and the delay. See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (requiring a petitioner to demonstrate that "extraordinary circumstances beyond [petitioner's] control prevented him from complying with the statutory time limit."). at 418). burden An inmate asserting equitable tolling "^bears a strong to show specific facts'" both elements of the test. (10th Cir. (11th 2008) Cir. specify claims.'" (10th Cir. that to at Yang v. Archuleta, Generally, he 930 took to As 512 below, fulfills F.3d 1304, petitioner diligently explained is pursue 928 1307 obliged his federal 141 F.3d 976, the Court to need 978 not extensive equitable tolling analysis because Scott demonstrate that he diligently extraordinary circumstances § 2254 the he 525 F.3d 925, (quoting Miller v. Marr, 1998)). engage in an fails steps Id. demonstrate (quoting Brown v. Barrow, 2008)). "Athe that Petition before the pursued his rights prevented him from filing expiration of the or his limitation period on July 29, 2011. 1. Scott's Argument For Equitable Tolling Scott's equitable tolling argument pertains entirely to the period of time after the federal limitation period had expired. Scott claims that his habeas counsel's failure to file an appeal of the Circuit Court's August 5, 2011 denial petition entitles him to equitable tolling. counsel promised she would file an appeal, not inform deflected him his once the attention deadline to the has Governor of Virginia through habeas Scott argues that passed. possibility her his but did not "and did sentencing . . . or to the possibility ... the of Instead, of a she re of clemency from political ^contacts.'" (§ 2254 Pet. 15.) Scott mischaracterization of least through end Scott also the cites to the 2012." the initial counsel's of (Id. "deflection and his case lasted (citations suspension of omitted).) counsel's her failure to provide him with a case file, purported entitlement May 17, 2014. "10 at bar her failure to tell him of her initial ultimate revocation of her his that circumstances of license in November 2012, suspension, argues and the license on May 17, 2013, to support to equitable tolling until "at least (Id^ at 15-15A.) Thus, Scott argues that the limitations period should be tolled between August 5, 2011 and the filing of his § 2254 Petition. 2. Scott No Entitlement To Equitable Tolling fails to demonstrate any entitlement to equitable tolling based on counsel's malfeasance beginning after August 5, 2011, because the statute of limitations had already expired on July 30, 2157616, 2011. at *6 See Va. Jan. v. Clarke, (E.D. Va. May 23, 2014) Deville v. Johnson, (E.D. Engel 12, No. 3:12cv856, 2014 (citations omitted); No. 1:09cv72(CMH/TRJ) , 2010 WL 148148, 2010) (explaining that no period to WL cf. at *2 toll existed when the federal limitations period had already expired (citing 2000))). Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. Moreover, Scott provides no argument or any specific 10 The Court fails to discern why Scott argues that the limitation period should be equitably tolled until May 17, 2014, as Scott filed his § 2254 Petition on February 27, 2014. 10 facts demonstrating his entitlement to equitable tolling prior to the expiration of the limitation period. Scott has not alleged any facts which could possibly constitute extraordinary circumstances prior to August 5, Cf. United 6842991, at *3 States (E.D. Va. circumstances or v. Williams, Dec. due 29, No. 2011) diligence facts relating to no 2011 no WL extraordinary specific facts alleged Scott also makes no showing that acted with requisite diligence. specific (finding when for the relevant time period). he 3:07crl23, 2011. his Scott has efforts to not provided any pursue his § 2254 Petition during the one-year period from the date his probation revocation became final on July 29, 2010 and the expiration of the limitation period July 29, 2011.n Cf. id. at *3; Valverde v. Stinson, (2d Cir. 2000) demonstrate a petitioner between is the equitable 224 F.3d 129, required "to extraordinary tolling rests 134 circumstance and the on lateness (observing that a causal which of relationship the his demonstration that cannot be made if the petitioner, claim filing, for a acting with 11 Between the period of July 29, 2010 and the retention of state habeas counsel and filing of his state habeas petition by retained counsel on April 29, 2011, Scott provides no facts demonstrating that he diligently pursued either his state or federal habeas rights or an extraordinary circumstance prevented him from filing a § 2254 petition. See Palacios v. Stephens, 723 F.3d 600, 607-08 (5th Cir. 2013) ("weigh [ing] heavily" in its finding that petitioner failed to exercise reasonable diligence, the fact that petitioner waited seven months into the federal limitations period to retain counsel for a state habeas petition). 11 reasonable the diligence, could have circumstances.") meritorious grounds Because for filed on Scott time notwithstanding fails equitable to demonstrate tolling, the any statute of limitations bars the action. Ill. Accordingly, will be granted. order § 2254 dismissed. action will be final Respondent's An in certificate The a § of § 2253(c) (1) (A). 2254 CONCLUSION Motion to Petition Dismiss will be appeal may not be proceeding appealability A COA will not unless a (ECF No. denied 4) and the taken from the judge ("COA"). issues 28 a U.S.C. issue unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or, agree been that) the petition should have for that matter, resolved different manner or that the issues presented were deserve encouragement to proceed further.'" 529 U.S. 473, 880, 893 & n.4 484 (2000) (1983)). in a ^adequate to Slack v. McDaniel, (quoting Barefoot v. Estelle, 463 U.S. No law or evidence suggests that Scott is entitled to further consideration in this matter. therefore be denied. 12 A COA will The Clerk of the Court is directed to send a copy of this Memorandum Opinion to counsel of record. /s/ Robert E. /&v Payne Senior United States District Judge Richmond, Virginia Date: : 4ff4>cm<&*^1~$; 1*0>/<f 13
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
