Anthony Page v. Gene Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cv-00719-JCC-JFA. Copies to all parties and the district court/agency. [998548036] [10-7660]

Anthony Page v. Gene Johnson

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Case: 10-7660

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Date Filed: 03/18/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7660

ANTHONY BERNARD PAGE, Petitioner ­ Appellant, v. GENE M. JOHNSON, Respondent ­ Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:10-cv-00719-JCC-JFA)

Submitted:

March 3, 2011

Decided:

March 18, 2011

Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Anthony Bernard Page, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Anthony court's order Bernard Page seeks his to 28 appeal U.S.C. the district (2006)

denying

relief

on

§ 2254

petition.

In his petition, Page raised claims related to his

1989 conviction for eight counts of robbery as well as claims related to the subsequent revocation of a suspended sentence received for one of those robbery convictions. The district

court dismissed petitioner's claim relating to the revocation of his suspended sentence because that claim did not present a

federal constitutional claim. * court indicated that

In the same order, the district remaining claims appeared

petitioner's

untimely.

In accordance with Hill v. Braxton, 277 F.3d 701, 707

(4th Cir. 2002), the district court informed petitioner that his remaining claims would be dismissed as untimely unless, within thirty days, petitioner contested the application of the statute of limitations or established his entitlement to equitable

tolling.

In response, petitioner argued that he was entitled to

equitable tolling because he had been provided with ineffective assistance of counsel during his 1989 sentencing and because he had not received a letter indicating his acceptance into a Youth Challenge parole program until 2010.
*

Petitioner does not address the dismissal of revocation challenge on appeal and we accordingly will address issues related thereto. See 4th Cir. Loc. R. 34(b).

the not

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The district court considered petitioner's arguments and found them unpersuasive. The court opined that the alleged

ineffective assistance claim did not justify tolling the statute of limitations for twenty years. Moreover, the court noted that

an attachment to the habeas petition demonstrated petitioner's acceptance into the parole program and knowledge of that

acceptance before sentencing. not established his

Concluding that petitioner had to equitable tolling, the

entitlement

district court dismissed the claims as barred by the statute of limitations. The district court expressly denied to issue a

certificate of appealability. The district court's order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2006). A certificate of

appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2006). grounds 28 U.S.C. § 2253(c)(2)

When the district court denies relief on procedural without reaching the merits of the underlying

constitutional claims, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a

constitutional right. (2000).

Slack v. McDaniel, 529 U.S. 473, 484-85

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We have independently reviewed the record and conclude that Page has not made the requisite showing. "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." 28 U.S.C.A. § 2244(d)(1). begins on the latest of four dates: (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) application the date by on which the action impediment in to filing of an the The one-year period

created

State

violation

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) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id. 21, 1989, when In this case, the one-year period began on May the time See for seeking review of petitioner's Rule 5:9(a).

sentence

expired.

Virginia

Supreme

Court

Petitioner did not file his habeas petition until June 20, 2010. 4

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We agree with the district court's assessment of petitioner's arguments for equitable tolling and conclude that no reasonable jurist could find the correctness of the district court's

procedural ruling debatable. Accordingly, and dismiss the appeal. we deny a certificate of appealability

We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process. DISMISSED

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