Bowman v. Clarke, No. 3:2017cv00161 - Document 11 (E.D. Va. 2018)
Court Description: MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge Robert E. Payne on 05/14/2018. Copy of Memorandum Opinion mailed to Petitioner as directed.(ccol, )
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Bowman v. Clarke Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA L Richmond Division I 5 2018 JIMMY BOWMAN, CLERK, U.S. DISTRICT COUm Petitioner, RICHMOND. VA V. Civil Action No. 3;17CV161 HAROLD CLARKE, Respondent. MEMORANDUM OPINION Jimmy Bowman, a Virginia inmate proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1). Respondent moves to dismiss, inter alia, on the ground the that one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. Despite being given Roseboro^ notice. Bowman has not responded. For the reasons set forth below, the Motion to Dismiss (ECF No. 7) will be granted. I. A. PROCEDURAL HISTORY State Proceedings Bowman pled guilty to possession of cocaine in the Circuit Court for the County of Prince George ("Circuit Court"). No. 9-1, at 1.) (ECF On August 5, 2014, the Circuit Court entered ^ Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) Dockets.Justia.com final judgment and sentenced Bowman to an active sentence of six months of imprisonment. (Id. at 2.) Bowman did not appeal. On July 30, 2015, Bowman filed a petition for a writ of habeas corpus with the Supreme Court of Virginia. No. 9-5, at 1.) On February 10, 2016, the Supreme Court of Virginia dismissed the petition. B. (See ECF (Id. at 2.) Federal Habeas Petition On January 24, 2017, Bowman placed his § 2254 Petition in the prison mail system for transmission to this Court. (ECF No. 1, at 15.) this date. The Court deems the § 2254 Petition filed as of See Houston v. Lack, 487 U.S. 266, 276 (1988). Bowman asserts that he is entitled to relief on the following ground: Claim One "RETAINED COUNSEL WAS INEFFECTIVE ADVICE TO PLEAD GUILTY." (ECF No. BY HIS 1-1, at 5.) II. A. ANALYSIS Statute Of Limitations Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 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. now reads: Specifically, 28 U.S.C. § 2244(d) 1. 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 (B) by the conclusion of direct review or the expiration of the time for seeking such review; the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the 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; or (D) 2. 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. Commencement And Running Of The Statute Of Limitations Bowman's judgment became final on Thursday, September 4, 2014, when the time to file a notice of appeal expired. See Hill V. Braxton, 277 F.3d 701, 704 {4th Cir. 2002) ("[T]he one- year limitation period begins running when direct review of the state direct conviction review is has completed expired . or . when . the time (citing for seeking 28 U.S.C. § 2244(d)(1)(A))); Va. Sup. Ct. R. 5A:3(a) (requiring that a notice of appeal be filed within thirty (30) days of the entry of judgment). The statute of limitations began running on September 5, 2014. Three hundred and twenty-eight days of the limitation period expired before Bowman filed his state petition for a writ of habeas corpus on July 30, 2015. See 28 U.S.C. § 2244(d)(2). The statute of limitations began running again on February 11, 2016, the day after the Supreme Court petition for a writ of habeas corpus. dismissed Bowman's Three hundred and forty- eight additional days elapsed before Bowman filed his federal habeas petition on January 24, 2017. Because the limitation period ran for well over a year, the statute of limitation bars Bowman's § 2254 Petition. C. Bowman's Allegations of Innocence Although not expressly asserted by Bowman, Bowman suggests that the Court can examine the merits of his claim because he is actually innocent of the crime to which he pled guilty. McQuiggin v. innocence, if petitioner may Perkins, proved, pass 569 U.S. serves whether as the 383, a 386 gateway impediment (2013) ("[A]ctual through is a See which a procedural bar . . . or . . . expiration of the statute of limitations.") Nevertheless, as explained below. Bowman falls woefully short of establishing his innocence. "Claims of actual freestanding ones, see innocence, Herrera v. whether Collins, presented 506 U.S. 390, as 417 (1993), or merely as gateways to excuse a procedural default, see Schlup v. Delo, granted casually." Cir. 1998) 513 298, 317 (1995), should not be Wilson v. Greene, 155 F.3d 396, 404 (4th (parallel reviews Bowman's U.S. citations assertion of omitted). innocence Here, under the the more Court lenient standard for gateway claims because Bowman's actual innocence claim would allow barred claim. the Court to consider his otherwise time- McQuiggin, 569 U.S. at 386. A gateway claim requires "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup, 513 U.S. at 324. "Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. If a petitioner meets the burden of producing new, truly reliable evidence of his innocence, the Court then considers "'all the evidence, old ' and new, whether incriminating it admissibility would that and exculpatory, necessarily would be govern admitted at without regard to under 'rules of trial'" and determines whether the petitioner has met the standard for a gateway claim of innocence. House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at 327-28). The Court must determine "whether ^it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Bell, 593 F.3d 372, 377 U.S. at 327-28). Sharpe v. {4th Cir. 2010) (quoting Schlup, 513 "The Court need not proceed to this second step of the inquiry unless the petitioner first supports his or her claim with evidence of the requisite quality." Hill v. Johnson, No. 3:09cv659, 2010 WL 5476755, at *5 (E.D. Va. Dec. 30, 2010) (citing Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997); Feaster v. Beshears, 56 F. Supp. 2d 600, 610 (D. Md. 1999)). Here, the only evidence Bowman submitted was his own sworn declaration Bowman's that he is post-conviction innocent.^ profession (ECF of No. 1-3, at 1-3.) innocence is "not 'trustworthy' and does not constitute 'reliable' evidence of innocence sufficient to support a claim of actual innocence." Carter v. Virginia, No. 3:09CV121-HEH, 2010 WL 331758, at *6 (E.D. Va. Jan. 26, 2010) (quoting Schulp, 513 U.S. at 324). "To accept such commonplace declarations would ignore the Supreme Court's admonition ^ BAKER." that the quality of evidence necessary to Bowman also submitted an unsigned "AFFIDAVIT OF ROBERT (ECF No. 1-2, at 1.). In that typed document. Bowman suggests that Robert Baker was willing to testify that the drugs found at Bowman's residence belonged to Baker. This unsigned document does not constitute evidence, much less trustworthy and reliable evidence as required. See Mason v. Clark, 920 F.2d 493, 495 (8th Cir. 1990); cf. United States v. White, 366 F.3d 291, 302 (4th Cir. 2004) (observing that "unsworn statements in memoranda . . . do not constitute evidence"). support a claim of actual innocence 'is obviously unavailable in the vast majority of cases.'" 324). Accordingly, the Id. (quoting Schlup, 513 U.S. at Court rejects Bowman's assertion of actual innocence. III. CONCLUSION Respondent's Motion to Dismiss (ECF No. 7) will be granted. The § 2254 dismissed. Petition will be denied and the action will be The Court will deny a certificate of appealability. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Bowman and counsel of record. /s/ (1%^ Robert E. Payne Senior United States District Judge Richmond, Virginia Date
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