Fallen v. Clarke, No. 7:2018cv00539 - Document 17 (W.D. Va. 2019)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Michael F. Urbanski on 08/27/2019. (aab)
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CLERK'S OFFICE U. S.DI ST.CotlR' r AT RïM NOKE,VA FILED Ats 2 ï2215 IN TH E UNITED STATES DISTRICT COURT FOR THE W ESTERN DISTRICT OF VIRG INIA ROANOKE DIW SION SHAQUAN JAM AR FM ZLEN, Petitioner, V. HAROLD YV.CLARKE, R espondent. JUUA C.DUDLEY,CLi ' il Ri' l BY: D ' 1s '. ''.k C ivilC ase N o.7:18cv00539 ) ) ) ) ) ) ) M EM O R AN DU M O PIN IO N By:M ichaelF.U rbanski ChiefU nited States DistrictJudge Shaquan Jnm arFallen,aVirginia inm ateproceeding oro K ,fled a petition fora writof . habeascorpuspursuantto 28U.S.C.j2254 to challengehiscriminaljudgmententeredby the CircuitCourtforthe City ofDanville. Thism atteris.beforethe courton respondent'smotion to dism iss. After reviewing the record,the court concludes thatrespondent's motion m ust be gzantedandFallen'sj2254mustbepetitiondismissedastime-barred. 1. On July 21,2015,after Fallen pled nolo contendere,the CircuitCottrtfor the City of Danville entered a fnalorder convicting him ofsecond degree m urder,use ofa srearm in the comm ission ofafelony,and discharging afirearm in apublicplaceresultingin death.Thecourt sentenced him to atotaloffortp eightyearsofincarceration,with twenty-threeyearssuspended. Fallen d1d notappeal. On oraboutJune 16,2017,1Fallen filed apetition forawritofhabeas corpusin the CircuitCourtforthe City ofDmwille,alleging thathisplea wasnotknowing and voltmtary because cotmselwasineffective when he misadvised Fallen regarding the sentencing Fallen v. Clarke guidelines. Specifically,Fallen states that cotm seladvised him that Glthe guidelines were an Doc. 17 accurate reflection of the puni:hment range for the offensels heq was pleading guilty to.'' However,Fallen statesthathehasç4now leam ed''thattheguidelinecalculation ûtincluded acrime 1Fallen allegesthathefiled thepetition on June 16, 2017,rçspondentand statecourtrecordsfound online indicatethatFallenfiledthegetitiononJune22,2017.Thedifferenceindatesdoesnotaffectthecourt'sanalysisof thetimelinessofFallen'spetltion.ThecourtwillusethedateallegedbyFallen forpurposesofthisopinion. Dockets.Justia.com (trobberyljwhich (he)wasconvicted ofafter''committing thecdmesto which heplead guilty. Fallen argues that the robbery conviction should nothave been considered in calculating his guideline range. The CircuitCourtdenied llishabeaspetition on October20,2017. The court fotmd thathis claim concerning the voltmtariness of his plea was defaulted tmder Slayton v. Panican,205 S.E.2d 680.682 (Va.1974),and thathisineffective assistance ofcotmselclaim failed on itsmeritsunderStriclcland v.W ashindon,466U.S.668 (1984),becauseFallen failed to demonstrate thatcounsel'sperformancewasdetkientorthatFallen wasprejudiced by the alleged detk ientperform ance. Fallen appealed and the Suprem e CourtofVirginia dismissed his petition on Jtme 22,2018,as untim ely filed. Fallen sled the instantfederalhabeas petition no earlierthan October29,2018,allegingthe snme claimsthathe raised in llisstatehabeaspetition. SeePet,ECFNo.1,12;R.Gov.j2254 Cases3(d)(descdbingtheprison-mailboxntlel. II. UndertheAntiterrorism and EffectiveDeath Penalty Actof1996,apetitionerhasa oneyearperiod oflimitation to file a federalhabeascop uspetition. This statute oflim itationsnms from thelatestof: (A)the date on which thejudgmentbecnme finalby the conclusion of directreview ortheexpiration ofthetime forseeking such review ; (B)thedateon which theimpedimentto filing arfapplication created by State action in violation ofthe Constitm ion orlawsoftheUrlited Statesis rem oved,iftheapplicantwasprevented f' rom filingby such Stateaction; (C)the date on which the constitutional right asserted was initially recognized bythe SupremeCourt,iftherighthasbeen newly recogrliked by the Suprem e Court and m ade rekoactively applicable to cases on collateralreview ;or (D)the date on which the factual predicate of the claim or claims presented could have been discovered tbrough the exercise of due diligence. 28U.S.C.j2244(d)(1).Here,Fallen allegesnothingtosupportapplication ofj2244(d)(1)(B)(D).2 Underj2244(d)(1)(A),Fallen'sconviction becnmefinalon August20,2015,when his timetofileadirectappealofhisconvictionexpired,seeVa.Codej8.01-675.3andVa.S.Ct.Rl. 5A:6,andthe statuteoflim itationsbegan to rtm on thatdate. Therefore,Fallen had tmtilAugust 22,2016,to fileatim ely federalhabeaspetition. Fallen did notfle his state habeaspetition untilJune 16,2017,approxim ately 300 days afterthe one-yearlim itationsperiod expired. Thus,Fallen's state habeaspetition afforded him no statutorytollingtmderj2244(d)(2),3and hisfederalhabeaspetition istime-barred lmlesshe dem onstratesthatthe courtshould equitably tollthe limitationsperiod,Rouse v.Lee,339 F.3d. 238,246(4th Cir.2003),orthatheisactuallyinnocentofllisconvictions,M couicginv.Perkins, 569U.S.383,386(2013). A districtcourtmay apply equitable tolling only in ttthose rare instances where--due to circum stances extem alto the party's own conduct- itwould be tmconscionable to ezlforce the limitation period againsttheparty and grossinjusticewould result.'' Rouse,339 F.3d.at.246 (citing Harris v.Hutchinson, 209 F.3d 325, 330 (4th Cir.2000)). The petitioner must dem onstrate that som e action by the respondent or Gçsom e other extraordinary circllmstance beyond his control''prevented him from complying with the statutory tim e lim it,despite his exercise ofGçreasonable diligence in investigating and bringing the claim s.'' Harris,209 F.3d at 2In fact, inresponsetorespondent' smotionto dismiss,FallenstatesthatheRagreeEs)with respondent's assertiohthatçabsenttollingy'ghe)haduntilAugust22,2016(toneyearfrom thedatehisconvictionbecamefinall! to seek reliefin this comt'' See ECF No.16,1. To the extentFallen'sallegations concerning equitable tolling couldbeconstrued asan argumentthatthestamteoflimitationsshouldbegin toruntmderj2244(d)(1)(A),any such argum entfailsbecausethefacm alpredicateofhisclaim sw asknown to him atthetim eofhissentencing,when histrialcounselnotedthathisguidelinescalculationswashigherbecauseoftherobbery conviction. See Sentencing Tr.,ECF No.11-3,49. M oreover,asdiscussed herein,Fallen hasnotdemonskated thathe diligently pursued his claim s. 3A properly filed statehabeaspetitiontollsthestatuteoflimitations;however, Fallen filedthestatehabeas petition aûerthestatuteoflimitationshadalreadyexpired. 330 (citing M illerv.N.J.StateDep'tofCorrs.,145 F.3d 616,618(3d Cir.1998:. An inmate asserting equitable tolling çtGbears a strong burden to show specitk facts'''thatdem onstrate he f' ulfillsboth elementsofthetest.Yangv.Archuleta,525F.3d925,928(10th Cir.2008)(quoting Brownv.Barrow,512 F.3d 1304,1307 (11th Cir.2008:. TheFourth Circuitdefinesdiligence asttthe diligence reasonably expected from ,and ordinarily exercised by,a person who seeksto satisfy a legalrequirem entorto discharge an obligatiom'' Lawrence v.Lynch,826 F.3d 198, 204(4th Cir.2016)(quotingDiligence,Black'sLaw Dictionarv(10thEd.2014:. In supportofan equitabletolling argum ent,Fallen statesthathe repeatedly requested his çGentire trialrecord''f' rom defense counsel,but that his letters were ignored untilhe filed a V irgirlia State Bar com plaint against counsel. O nce he çf nally received the trial record and cocesponded with cotmselaboutthe guidelines,''he ççdiscovered''thatcounsel'sineffectiveness Gicauseldhimqto enterllnknowingljpleasofguilty.'' SeeResp.Opp.,ECF No.16,2. Fallen argues thattçabsentevidence to supportrhisjposition,ghelwas tmable to submitclaimsthat cotmselwasineffective.'' 1d. Fallen's allegationsthathis attorney delayed providing him with a copy ofhiscrim inal case file do not dem onstrate an extraordinary circlzm stance beyond his controlthatprevented llim f' rom complying with thestatute oflimitations. See e.c.,M icuelv.cohen,N o.9:13-cv-374- JM C,2013U.S.Dist.LEXIS 117527,at*6-7,2013WL 4500459,at*4 (D.S.C.Aug.20,2013) (findingpetitionerwasnotentitled to equitabletollingwhereheclaimed thedelay in tilingllis postconviction relief application wasthe faultofhis attorney who did nottim ely provide him withthediscoverymaterialshefeltheneededtofiletheapplication);W eersingv.Cartledze,No. 8:09-cv-88-JM C,2011U.S.Dist.LEXIS43540,at*14,2011WL 1543706,at*3-5(D.S.C.Apr. 21,2011)(finding petitionerwasnotentitled to equitabletolling because he Gçfailled)to show thathislack ofaccesstollisgcasejfileprevented him from asserting cognizableclaimsboth in 4 histimelyfiled applicationforgpostconviction)relieforinhistmtimely filedpetitionforhabeas corpus'');Mccaffervv.Henrv,No,06-3832 CW IPR),2008U.S.Dist.LEXIS 119867,at*18-20, 2008W L 859455,at*6(N.D.Cal.M ar.28,2008)(rejectingequitabletollingbasedondiftkulty in obtaining copy oftrialattorney'scase file since thepetitionercould have had hertrialrecord copied atan earlierdateandshereceivedcopybeforethestatuteoflimitationsranl;W illiamsv. Clark,No.CV-07-1582-AHM (PLA),2007U.S.Dist.LEXIS 96449,at*14,2008W L 474343, at*5 (C.D.Cal.Jan.3,2008)(GTo the extentthatpetitionerisclaiming thathe isentitled to equitabletolling based on the failureofeitherhistrialcotmselorhisappellatecolm selto provide him with llis files and records,petitioner's allegationsdo not warrant equitable tolling.'). Further,Fallen doesnotdescribewhatrecordshe needed in orderto filellishabeaspetition,does not include any parts of the record with his petition,and does notexplain why he could not requestcopies of the record from the sentencing court. M oreover,Fallen knew the facts to supporthis claim s at the tim e of his sentencing hearing. At his lune 16,2015 sentencing hearing,Fallen's attorney,atFallen'srequest,asked the courtto nm Fallen's sentence forthe mtlrderand firearm convictionsconcuzrentto hisrobbery sentence because çtthe guidelineswere higheron (the mtlrderand firearm offensesqbecause ofgthe robbery convictionl.'' Sentencing Tr.,ECF No.11-3,49. Fallen has presented no evidence thatan extraordinary circllm stance beyond his controlprevented him from filing his federalhabeas petition within the statute of limitations. Even if Fallen could dem onstrate an extraordinary circllmstance beyond his contm l,he has not dem onstrated thathe has diligently ptlrsued his federalclaim s. Fallen does not state when he tçrepeatedly''requested copies of his trialrecord from cotm sel or when he filed a Bar com plaint against counsel and he does not state when he ultim ately received his trial record. 5 Based on the evidence presented by Fallen,the courtcnnnotfind thathe diligently pursued his federalclaim s. Accordingly,thecourtfindsno basisto equitably tollthelimitationsperiod.4 Finally, a gateway claim of actual innocence requires a petitioner to produce new, reliableevidence suffkienttopersuadethecourtthatnoreasonablejmorwouldhavefoundthe petitionerguilty beyond a reasonable doubtto overcom e atim e-br restriction. M couiccin,569 U.S.at386(citing Schlup v.Delo,513U.S.298,329(1995( 9.Fallenhasnotpresented anynew evidence in hisfederalhabeaspetition and,thus,hasnotplausibly alleged a basisforexcusing llis untimely sling. Accordingly,the courtconcludes thatFallen's federal habeas petition is time-bnrred. 5 111. Based on theforegoi ENTER:This#O the urtwillgrantrespondent'sm otion to dism iss. dayofAugust, 2019. />/ 'z'/: ChiefU ' oJ . ' X o: atesD istrid Judge 4Tothe extentFallen arguesthathe isentitled to equitabletolling because heisnottrained in thelaw , has limited access to the 1aw library and a computer,and was transferred atsome pointwhile he was prepnri ng his habeaspetition,the courtagain concludesthathehasnotmethisburden ofdemonstrating thatequitable tolling is warranted.Seee.e..UnitedStatesv.Sosa,364F.3d507,512(4thCir.2004)Cteveninthecaseofanunrepresented prisoner,ignoranceofthe1aw isnotabasisforequitabletolling'');Garvin v.Eaaleton,No.8:12-1165-JMC,2013 U.S.Dist.LEXIS102696,2013WL3821482,at*13(D.S.C.July23,2013)(sEpetitioner'sallegationsrejardinglack ofresomcesinthe1aw librarydonotconstimtethetypeofextraordinm'ycircumstancesthatjustify equltabletolling becausealleged inadequaciesofprison 1aw librariesdonottollthestamteoflimitations.n);Kingv.United States, No.3:18cv20(GROH),2019U.S.Dist.LEXIS 130579,at*7-9,2019 WL 3543871,at#2(N.D.W .Va.July 18, 2019)(prisontransfersdonotamotmtto extraordinary circumstancesthatbarprisonersom tiling apetition for habemscomus). 5'1' heparties summ arily m ention the Suprem e Court'sdecision in M artinezv. Rvan,566 U. S.1(2012). The courtnotes,however,thatMm inez doesnotsaveFallen'suntimely federalhabeaspetition because Rltqhe decision in Martinez failstoprovideany basisforavoidinj thestamte oflimitationssetforth in 28 U.S.C. 52244(d).''W ardv.Clarke,No.3:14cv1I-HEH,2014U.S.Dlst.LEXIS 157345,at*3,2014 WL 5795691,at*3 (E.D.Va.Nov.6,2014)(citingLambrixv.Sec'y.Fla.Dep'tCom ,756F.3d1246,1262(11thCir.2014:. 6
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