Hoge v. Ratliffe-Walker, No. 7:2018cv00466 - Document 18 (W.D. Va. 2019)
Court Description: MEMORANDUM OPINION. Signed by Senior Judge Jackson L. Kiser on 9/12/2019. (tvt)
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qkg.Ndsi :ê/k blI ):v..:447;çY !r ATPANVICk% VA - FlLen IN TH E U NITED STA TES DIST RICT C O UR T FO R TH E W ESTE RN DISTRIC T O F V IR G IN IA R O AN O K E DIW SIO N $EP l2 2219 . JULI BY: ' D a' LEY c K JO H N O TH A H O G E, Petitioner, CivilActionNo.7:18:v00466 M E M O M N D UM O PIN IO N V. DA N A M TLIFFE.W M M R, By: H on.Jaclkson L.K iser SeniorUnited StatesDistrictJudje R espondent. Jolm OthaHoge,aVirginiainmatepxoceeding pro K ,fled apetition forawritofhabeas corpus,plzrsuantto 28 U.S.C.j 2254,to challengehis2015 criminaljudgmententered by the Circuit Court of Rockinghnm Cotmty.This m atter is before me on respondent's motion to dism iss.Afterreviewing the record,I conclude thatrespondent's m otion mustbe granted and Hoge'sj2254petitionmustbedismissedastime-barred. 1. On M arch 9,2015,afterajury trial,theCircuitCourtofRockinghnm County entered a finalorderconvicting Hoge ofcnrnalknowledge ofa l3-year-old,in violation ofVirginia Code j18.2-63,and sentenced him to ten years of incarceration.Hoge appealed,challenging the sufficiency oftheevidence,and the Cotu'tofAppealsofVirginiadenied hisappeal.Hogefurther appealed to the Supreme CourtofVirginia,which refused his appealon August31,2016.The orlline docketofthe Suprem e Courtofthe United States showsthatHoge did notfilea petition Hoge v. Ratliffe-Walker Doc. 18 for w rit of certiorari.On July 2,2018,H oge ûled a petition for a w rit of habeas corpus in the Suprem e Courtof Virgin'ia,and the courtdenied the petition as untimely filed on August30, 2018.Hoge filed the instantfederalhabeaspetition no earlierthan September5,2018,alleging thatthe evidence w as insufdcient to supporthis conviction an. d that counselw as ineffective at Dockets.Justia.com l trialand in failing to notify him thathisappealhad been denied. I1. Under the Antiterrorism and Effective Death Penalty Act of 1996 (CtAEDPA''), a petitionerhasaone-yearperiod oflim itation to file a federalhabeascorpuspetition.This statute oflimitationsrtm sfrom thelatestof: (A)the date on wllich thejudgmentbecnme tsnalby the conclusion of directreview orthe expiration ofthetim eforseeking such review ; (B)the dateon which the impedimentto filing an application created by State action in violation ofthe Constitution orlawsoftheUnited Statesis rem oved,iftheapplicantwasprevented f'rom filing by such Stateaction; (C)the date on which the constitutional right asseled was initially recognized by the Supreme Cotut ifthe righthasbeen newly recognized by the Suprem e Court and m ade retroactively applicable to cases on collateralreview;or (D)the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C.j 2244(d)(1).Hoge alleges nothing to supportapplication ofj2244(d)(1)(B)-(D).1 Underj2244(d)(1)(A),Hoge'sconviction became finalon November29,2016,whenhistime to file a petition for writ of certiorari to the Suprem e Courtof the United States expired. Therefore,Hoge had tmtilNovember 29,2017,to file a tim ely federalhabeas petition.Hoge filedllisfederalhabeaspetitiononSeptember5,20ï8. Hoge's state habeas petition afforded him no statmory tolling under j2244(d)(2), becausehedid notfileituntilJuly 2,2018,approximately 215 daysaftertheone-yearlim itations 1To theextentHoge'sallegationsconcerning equitabletolling could be construed asan argum ent thatthe statute of limitations should begin to nm on another date under j2244(d)(1)(D),any such argum entfailsbecause,asdiscussed herein,hehasnotdem onstrated thathe diligently pursued discovery hisclaim s. 2 period expired.z Thus,Hoge'sfederalhabeaspetition istime-barred unlesshe demonstratesthat thecourtshould equitablytollthelimitationsperiod,Rousev.Lee,339 F.3d.238,246 (4thCir. 2003),orthatheisactuallyinnocentofhisconviction,M couiccinv.Perkins,569U.S.383,386 (2013). A districtcourtm ay apply equitable tolling only in Gtthose rare instanceswhere--due to cir'cumstances extenlalto the party's own conduct- itwould be unconscionable to enforce the limitation period againstthe party and grossinjustice would result.''Rouse,339 F.3d.at246 (citing Hanis v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). The petitioner must dem onstrate that some action by the respondent or tcsome other extraordinary circumstance beyond his çontrol''prevented him from complying with the statutory tim e lim it,despite his exercise ofEsreasonable diligence in investigating and bringing the claim s.''Harris,209 F.3d at 330 (citingM illerv.N.J.State Dep'tofCorrs.,145 F.3d 616,618(3d Cir.1998)).An inmate asserting equitable tolling (ttbearsa strong burden to show specific facts'''thatdemonstrate he fulfillsboth elementsofthetest.Yancv.Archuleta,525F.3d 925,928(10thCir.2008)(quoting Brown v.Banow,512F.3d 1304,1307(11thCir.2008:.TheFourth Circuitdefinesdiligenceas Stthe diligence reasonably expected from ,and ordinazily exercised by,a person who seeks to satisfy alegalrequirementorto discharge an obligation.''Lawrence v.Lvnch,826 F.3d 198,204 (4thCir.2é16)(quotingDiligence,Black'sLaw Dictionary (10thEd.201* 4)). 2M oreover,the state habeaspetition affordshim no statutory tolling because itwas notproperly filed.Section 2244(*(2)tollsthe federallimitation period during thetime in which C&a properly filed application forStatepost-conviction orothercollateralreview ...ispending.''28U.S.C.j 2244(d)(2). Anapplicationforpost-convictionreview orotherstatecollateralproceedingisEtprojerlyfiled''whenits delivery and acceptance are in compliance with the applicable lawsand rules governlng filings.A rtuz v. Bennett 531U.S.4,8 (2000);see also Pace v.DiGuRlielmo,544 U.S.408,414 (2005).Hoge'sstate habeas petition was dismissed as time-barred.A petition thatisdenied by a state courtas untimely is not dsproperlyfiled''withinthemeaningoftheAEDPA.Pace,544U.S.at414(citation omitted)(ttWhen a postconvlction petition isuntimely understate law,çthat (isqthe end ofthe matter'forpurposes of j 2244(d)(2).''). 3 Hoge's appealto the Suprem e CourtofVirginia wasfiled in Decem ber 2015 and was refused by thatcourton August 31,2016.In supportof his equitable-tolling argument,Hoge allegesthathe did notknow thathisappealhad been refused untilSeptem ber5,2017,because counselfailed tonotify him .On October13,2017,the Suprem e CourtofVirginiaresponded to a letter from Hoge dated September 5,2017,and advised him thathis appealhad been refused m ore than a yearearlier.Hoge does not allege thathe could nothave discovered thispublicly available information sooner than he claims he did.He also does not allege that he inquired, eitherto the cotu'torto counsel,asto the statusofhisappealanytime before September5,2017, orthatany inquiriesto thecourtorcounselwentunanswered. Cotm sel's faillzre to notify H oge aboutthe final disposition of his direct appeal did not riseto the levelofan extraordinary circumstance so astojustify equitable tolling.Seese.g., Cooperv.Joyner,No.8:18-cv-2692,2019 U.S.Dist.LEXIS 139139,at*21,2019 W L 3841936, at*4(D.S.C.Jtme21,2019);Lacavav.Kvler,398F.3d 271,276-77 (3dCir.2005);W akeelv. Fercuson,No.18-3050,2019 U.S.Dist.LEXIS 33106,at#14,2019 W L 2550528,at*5(E.D. Pa.Feb.27,2019).Further,even if Hoge could demonstrate an extraordinary circumstance beyond his control,he has notdemonstrated thathe has diligently pursued his federalclaim s. The only effortdescribed by Hoge w as his Septem ber 5,2017,letter to the Supreme Courtof Virginia,which he sentnearly two yearsafterhisappealwasfiled.Based on Hoge'sallegations and the evidence before m e,1 cannot find lhat Hoge diligently pursued his federal claim s. Accordingly,Ifind no basisto equitably tollthe limitationsperiod. Finally, a gateway claim of actual innocence requires a petitioner to produce new, reliableevidencesufficientto persuadethecourtthatnoreasonablejtlrorwouldhavefoundthe petitionerguilty beyond a reasonable doubtto overcom e atim e-barrestriction.M couizcin,569 U.S.at386 (citing Schlupv.Delo,513U.S.298,329 (1995)).Hogehasnotpresented anynew evidence in his federalhabeaspetition and,thus,hasnotplausibly alleged a basisforexcusing histmtimelytiling.Accordingly,1concludethatHoge'sfederalhabeaspetition istime-banvd. 111. Based on theforegoing,Iwillgrantrespondent'sm otion to dism iss. ENTERED this = day ofSeptember,2019. - ' . .. l' . ( EN IO UN TED STATES DISTRJCT JUDGE
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