Holden v. Clarke

Filing 18

MEMORANDUM OPINION - For the reasons stated Respondent's Motion to Dismiss must be granted, and the petition must be dismissed. An appropriate Judgment and Order will issue. Signed by District Judge T. S. Ellis, III on 03/13/2015. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Jarrett D. Holden,
Petitioner,

)
)
)

V.

)

Harold Clarke,
Respondent.

)
)
)

l;13cvl591 (TSE/MSN)

MEMORANDUM OPINION

Jarrett D. Holden, a Virginia inmate proceedingeto

has filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality ofhis life sentence

following Millerv. Alabama. _ U.S. _, 132 S. Ct. 2455 (2012). On June 20,2014, respondent
filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and numerous exhibits.
Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975), and he filed a reply on July 8,2014. For the reasons that
follow, respondent's Motion must be granted, and the petition must be dismissed.
1. Background

On April 10,1998, petitioner was convicted by a jury of one count of capital murder, one
count of attempted robbery, and one countof use of a firearm in the commission of attempted
robbery in the Circuit Court for the County of Accomack. Commonwealth v. Holden. Case no.

CR97-141. Petitioner committed these crimes when he was seventeen years old. On June 11,

1998, he was sentenced to life in prison without parole plus tWrteen years. Both the Court of

Appeals ofVirginia and the SupremeCourt of Virginiadenied his petitionfor appeal. See
Holden v. Commonwealth. R. No. 1554-98-1; Holden v. Commonwealth. R. No. 991372. On

September25,2000, petitioner filed a petition for a writ of habeas corpus in the trial court.

alleging that the trial court erred in refusing to appoint a ballistics expert for the defense. The
trial court found that petitioner's claim was barred by Slavton v. Parrigan. 215 Va. 27,205
S.E.2d 680 (1974), and dismissed the petition on November 30,2000. Holden v. John Tavlor.
Warden. Case No. CL96-00. Petitioner did not appeal, but filed a second habeas petition in the
Supreme Court of Virginia on December 20,2000. On March 19,2001, the court dismissed the

petition as untimely filed. Holden v. Warden. Sussex I State Prison. R. No. 003062.

Petitioner filed his first federal petitionfor a writ of habeas corpus, pursuantto 28 U.S.C.
§ 2254, on or about May 4,2001. See Holden v. Braxton. Case No. 1:01-cv-709-TSE. His

petitionwas dismissed as time-barred on April22,2002. The United States Court of Appealsfor
the Fourth Circuit dismissed the ensuing appeal on August 20,2002. Sro Holden v. Braxton.
Case No. 02-6816 (4th Cir. Aug. 20,2002).

On July 17,2013, petitioner filed a secondfederal petitionfor a writ of habeas corpus,
assertingthat his sentenceof life imprisonment without parole, imposed for a crime committed
when he was seventeen years old, violated the U.S. Supreme Court's decision in Miller. 132 S.

Ct. at 2455, which held, for the first time, that the imposition of a life sentence wdthout parole on
a juvenile violates the Eighth Amendment. Along with his petition, petitionerenclosed a letter

stating that he had been granted authorization to file a successive § 2254 petition firom the Fourth
Circuit, pursuant to 28 U.S.C. § 2244(b)(3)(A). See Holden v. Clarke. Case No. l:13-cv-897

(TSE/TRJ), Review of the Fourth Circuit's docket confirms thatthe court received petitioner's
§ 2244 motion on May 31,2013 and granted this motion on June 19,2013,permitting the filing

ofa successive §2254 petition.' Petitioner attached his §2254 petition, executed on May 22,

' In petitioner's appeal from the dismissal ofhis second §2254 petition, the Fourth Circuit
statedthat it had granted petitioner authorization to file his second petitionon June 16,2013.
SeeDkt. 10, at 2. However, theOrder granting thisauthorization wasissued on June 19,2013,

2013, to his § 2244 motion, as required by Fourth Circuit Rule 22(d). ^

In re: Holden. Case

No. 13-264 (4th Cir. June 19,2013). On September 20,2013, the petition was dismissed without

prejudice on the groundthat petitioner had failedto exhausthis clahn beforethe Supreme Court
of Virginia. See Case No. l:13-cv-897, Dkt. 3. Petitioner then appealed this dismissal, and the

Fourth Cu-cuit denied a certificate of appealability and dismissedthe appeal on February20,
2014. ^

Holden v. Clarke. Case No. 13-7629 (4th Cir. Feb. 20,2014).

In the meantime, petitioner filed a petition for a writ of habeas corpus raising his Miller

claim in the Supreme Court of Virginia. This petitionwas dismissed as procedurally defaulted
and untimely filed, pursuant to Virginia Code §§ 8.01-654(A)(2), (B)(2), on November 7,2013.

Holden v. Dir. of the Deo't of Corr..R. No. 131604. Petitioner then re-filed his federal petition

here on November 21,2013.^ By Order dated January 10,2014, this petition was dismissed
without prejudice to petitioner's ability to move a panel of the Fourth Circuit for authorization to

file a successive petition,pursuantto 28 U.S.C. § 2244(b)(2)(B). ^

Dkt. 3. On appeal, the

Fourth Circuit vacated the dismissal Order, on March 11,2014, finding that his motion for

authorization to file a successive petitionwas "unnecessary," as the court had "already granted
Holden the requisite authorization under § 2244 [on June 19,2013]." See In re: Holden. Case

No. 14-140 (4th Cir. Mar. 11,2014). Therefore, the petition was reinstated on April 30,2014,
and respondent was directed to show cause why the writ should not be granted. Dkt. 9.

and there is nothingon the Fourth Circuit's docketto indicate that anything occurred on June 16,
2013.

^For purposes ofcalculating the statute oflimitations, the petition isdeemed filed when
petitioner places it in the prison mail system. Houston v. Lack. 487 U.S. 266 (1988). Petitioner
certified that he placed his petition in fte prison mail system on November 21,2013. The court
received it on December 17,2013.

The sole argument petitioner raises in the instant petition is that his sentence of life

imprisonment withoutthe possibility of parole, imposed for a crime committed as a juvenile,
violates the Eighth Amendment under the rule in Miller. 132 S. Ct. at 2455. See, e.g.. Pet., at 6.

He arguesthat Miller is a new rule of constitutional law, made retroactive to his case pursuantto
Teaeue v. Lane.489 U.S. 288 (1989). Respondent argues that (1) the instantpetitionis
untimely, and (2) Miller is not applicable to petitioner's case. For the reasons that follow,
respondent's Motion to Dismiss must be granted, as it appears on this record that the petition is
untimely filed. Alternatively, the petition fails on the merits, as the rule in this circuit is that
Miller is not retroactive to cases on collateral review.
IL Timeliness

A § 2254 petition for a writ of habeas corpus must be dismissed if filed more than one

year after (1) the judgment of conviction becomes final; (2) the removal of any state-created

impediment to the filing of the petition; (3) recognition by the United States Supreme Court of
the constitutional right asserted; or (4) the factual predicate ofthe claim could have been

discovered with due diligence. 28 U.S.C. § 2244(d)(l)(A)-(D). As petitioner's conviction

became final fifteen years ago, petitionerdoes not argue that the instant petition is timely under
§ 2244(d)(1)(A). Rather, he asserts that his petition is timely under § 2244(d)(1)(C), as he states
that Miller established a new rule of constitutional law that is retroactive to cases on collateral

review. Accordingly, whetherthis petition is timelydepends on (1) whetherpetitionerfiled the

instant petition within one yearof the decision in Miller: and (2) whether Millerapplies
retroactively to cases on collateral review.

The timeliness ofthe instant petition is a complicated issue for which there is no
dispositive controlling precedent. The timeline of this case is as follows;

•

June 25, 2012: The United States Supreme Court issues its decision in Miller v.
Alabama. 132 S. Ct. 2455 (2012).

•

May 22, 2013: Petitioner signs and executes his § 2254 petition.

Case No. 1:13-cv-

897 (TSE/TRJ), Dkt. 2, at 10.

•

May 31, 2013: The Fourth Circuit receives petitioner's motion for authorization to file a

successive § 2254 Petition. Pursuant to FourthCircuitRule 22(d),petitioner's § 2254
petition is included with this Motion. ^

Case No. 13-264, Dirt. 1.

• June 19, 2013: The Fourth Circuit grants petitioner's § 2244 motion, permitting him to
file a successive § 2254 petition.
•

July 17, 2013: Petitioner mails his § 2254 petition to this Court. See Case No. 1:13-cv897, Dkt. 1-2.

•

September 20, 2013: This Court dismisses the petition, without prejudice, for failure to
exhaust state remedies. See id Dkt. 3.

•

November 21, 2013: Petitioner re-files his petition in this Court.

Thus, it is clear that petitioner's case was not filed here until, at the earliest, July 17,

2013, more than one year after the decision in Miller.^ His petition was therefore not timely
filed. However, petitioner submitted his motion for authorizationto file a successive § 2254

petitionwithin the one-year limitations period, as the FourthCircuitreceived the petitionon May
31,2013. In addition, his § 2254 petition was attached to his § 2244 motion, so it is clear that

the Fourth Circuit received the petition within the one-yearlimitations period. Whetherthe
petition is timely, therefore, depends on whether the filing ofhis § 2244 motion for authorization

to file a successive § 2254 petition, with his § 2254 petitionattached, tolled the one-yearstatute

of limitations required by § 2244(d)(1)(C).'*

^Because the instant petition is identical to the earlier-filed petition inCase No. l:13-cv-897,
it is appropriate to treat the two petitions as part of the same case.

^Ifthe filing ofpetitioner's §2244 motion tolled the one-year statute oflimitations, the period
of time between May 31,2013 (when the Court of Appeals received the authorization) and June

Limited case law addresses the specific question whether a § 2244 motion for
authorization to file a successive § 2254 petition tolls the one-year statute of limitations. The
Fourth Circuit has not yet decided this question. Other circuits have done so, but are divided.

The Fifth Circuit, relying on the plain language of § 2244(b)(3)(A), has found that the filing of a
§ 2244 motion does not toll the one-year statute of limitations, as § 2244(b)(3)(A) clearly
envisions that a petitioner "shall move in the appropriate court ofappeals" for such an order
"before a second or successive application... is filed in the district court." See Fierro v.
Cockrell. 294 F.3d 674,680-81 (5th Cir. 2002) (quoting § 2244(b)(3)(A)). Thus, the Fifth

Circuit concluded that "the statute ... clearly contemplates that the actual [petition] will be filed

in the district court rather than the circuit court," and that the application and the petition are not
identical for tolling purposes. Id at 680; see also Rivera v. Ouarterman. 505 F.3d 349,353 n.5

(5th Cir, 2007). The Tenth Circuit has reachedthe oppositeresult, concluding that the pendency
of a § 2244 motion for authorization to file a successive § 2254 petition tolls the running of the
statute of limitations. See Easterwood v. Champion. 213 F.3d 1321, 1324 (10th Cir. 2000). The
Sixth Circuit, relying on previous circuit precedent that a motion for authorization to file a

successive § 2255 petition tolls the statute of limitations, has also found that the pendency of a §
2244 motion tolls the running ofthe statute of limitations. See Gihnore v. Berehuis. Nos. 13-

2008/2548, slip op., at 3-4 (6th Cir. Jan. 30,2015).

19,2013 (when the Court of Appeals granted the authorization) would be tolled. The statute of
limitations thus would run from June 26,2012 through May 31,2013, atotal of 335 days, and
from June 20,2013 through July 17,2013, a total of28 days. Thus, ifthe § 2244 motion tolled
the one-year statute of limitations, 363 days would be counted between the Miller decision and

the filing of the petition, and the petition wouldthen be tunely. If, however, the filing of the §
2244motion did not toll the statute of limitations, the limitations periodwould run continuously
from June 26,2012 through July 17,2013, a total of 382 days, rendering the petition time-barred.

In three opinions addressing this issue, courts in this district have followed the lead ofthe

Fifth Circuit, concluding- albeit tentatively - that the filing ofa motion for authorization to file
a successive § 2254 petition does not toll the statute of limitations.

Dnmas v riarkp No.

2:13-cv-398,2014 WL2808807, at *8 (E.D. Va. June20,2014) (Smith, C.J.)(finding that the
plain language of § 2244(b)(3)(A) counsels against tolling the statute of limitations for
authorization petitions filed in the Court ofAppeals); McLean v. Clarke. No. 2:13-cv-409-AWA-

TEM, 2014 WL 5286515, at *5-*6 (E.D. Va. June 12,2014) (reportand recommendation of

Miller, Mag. J.) (expressly agreeing with the logic ofFierro. 294 F.3d at 681, thatthefiling of a
§ 2244motion does not toll the statute of limitations), report andrecommendation adopted (Sept.
29,2014) (Wright Allen, J.); Stewart v. Clarke. No. 2:13-cv-388,2014 WL 2480076, at *3 (E.D.
Va. Mar. 13,2014) (relying on Fierro for the proposition that the filing of a motion for

authorization does nottoll the statute of limitations), report and recommendation adopted. 2014
WL 1899771 (E.D. Va. Apr. 29,2014) (Morgan, J.).

After careful review of the case law, it is clear that the resukreached by the Fifth Circuit
is the correct disposition of thistolling question. This is so because Congress made clear in
§ 2244(d) that only statepost-conviction proceedings can operate underthe statute to toll the
one-year limitations period, and it is clear that a motion for authorization to file a successive

§ 2254 petition filed in the Court of Appeals is not a state post-conviction proceeding. Thus,
§ 2244(d)'s plain language states that "[t]he 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

" 28 U.S.C. §2244(d)(2).

Accordingly, it is well-settled that only post-conviction proceedings filed instate court operate to
toll the one-year statute oflimitations. See Duncan v. Walker. 533 U.S. 167, 173 (2001) ("We

find no likely explanation for Congress' omission of the word 'Federal' in § 2244(d)(2) other
than that Congress did not intend properly filed applications for federal review to toll the

limitation period."). As petitioner's motion forauthorization to file a successive § 2254 petition
was a "properly filed application^ for federal review" when filed in the Fourth Circuit, the
statute of limitations was not tolled during the time the Fourth Circuit considered his motion.

Accordingly, petitioner is not entitled to statutory tolling for the pendency of his motionfor
authorization to file a successive § 2254 petition.

Butthis does not endthe inquiry, as "§ 2244(d) is subject to equitable tolling in
appropriate cases." Holland v. Florida. 560 U.S. 631,634 (2010^: see also Rouse v. Lee. 339

F.3d 238,246 (4th Cir. 2003). Therefore, although the pendency of petitioner's motion for

authorization to filea successive § 2254 petition didnot statutorily toll theone-year limitations

period, petitioner may argue for entitlement to equitable tolling. Yet, such anargument clearly
fails, as no record basis exists in this case for equitable tolling. In this regard, the Fourth Circuit
has held that "any resort to equity must be reserved for those instances where - due to
circumstances extemal to the party's own conduct - it would be unconscionable to enforce the

limitation period against the party andgross injustice would result." Id. at 246. Therefore, for

equitable tolling to apply, a petitioner must establish that (1) hehas been diligently pursuing his
rights, and that (2) some "extraordinary circumstance," beyond his control and extemal to his
own conduct, interfered withhis ability to file his petition in a timely manner. Holland. 560 U.S.

at 649 (quoting Pace v. DiGueliehno. 544 U.S. 408,418 (2005)). Nosuch extraordinary

circumstances exist here; the filing ofa motion for authorization to file a successive § 2254

petition is not anextraordinary circumstance. By statute, the Fourth Cu-cuit had thirty days to
issue its decision. ^

28 U.S.C. § 2244(b)(3)(D). As the Fourth Circuitissuedits decision in

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the instant case in a tunely fashion, no extraordinary circumstance stood in the way of

petitioner's ability to file a timely petition following the issuance of Miller. Accordingly,
equitable tolling does not apply to pendency ofpetitioner's motion for authorization to file a
successive § 2254 petition.

Because the petition was filed beyond the one-year limitations period in § 2244(d), and
because equitable tolling does not apply in the instant case, this petition is untimely and must be
dismissed.

III. Retroactivity of Miller

Although the timeliness of the petition is dispositive, it is nonetheless appropriate to

consider the merits ofthe petition in the event that the timeliness analysis is mistaken.®
Petitioner's sole argument in support of his § 2244 petition is that Miller announced a new

constitutional rule that is retroactively applicable to cases on collateral review, including the
instant petition. In general, new constitutional rules, like the one rendered in Miller, are not

applicable to cases that have already become final before the rule was announced, and thus, do
not apply to cases, like petitioner's, brought to the courts on collateral review.

Teaeue v.

Lane. 489 U.S. 288,310 (1989). This rule is subject to certain exceptions, however. First, a new

rule is retroactive to cases on collateral review if the U.S. Supreme Court expressly makes it so.

Second,a rule is retroactive on collateralreview if "the Court's holdings logicallypermit no
other conclusion than that the rule is retroactive." Tvler v. Cain. 533 U.S. 656,669 (2001)

^The timeliness analysis proceeds on the premise that the one-year period commenced to run
fi-om the date ofthe U.S. Supreme Court's issuance of Miller. It may be argued that the one-year
period does not begin to run until the prison library received a copy of the Miller decision. See,
e.g., Easterwood. 213 F.3d at 1323 (holding that the statute did not begin to run for purposes of
the "due diligence" requirement of § 2244(d)(1)(D) until the relevant case arrivedat the prison
library). The parties do not raise this issue, nor does the record reflect whenthe prisonlibrary
received the decision. Given this uncertainty, it is appropriate to consider the merits ofthe
petition and dismiss the petition on altemative merits grounds.

(O'Connor, J., concurring); ^

dso San-Misuel v. Dove. 291 F.3d 257,260 (4th Cir. 2002)

(internal citations omitted). Determining whether a rule applies retroactively in the absence of
express direction from the U.S. Supreme Court requires determining whether the rule fits into the

two exceptions identified in Teague. UnderTeaeue. a rule is retroactive if: (1) it is substantive,
rather than procedural, or (2) it is a "'watershed rul[e] of criminal procedure' implicating the
fundamental fairness and accuracy of the criminal proceeding." Whorton v. Bocktine. 549 U.S.
406,416 (2007) (alterations in original) (internal citations omitted); s^ also Teaeue. 549 U.S. at
307.

At the time this petition was filed, six decisions from this district had held that Miller

does not apply retroactively to cases pending on collateral review. See Dumas. 2014 WL

2808807; Landrvv. Baskerville. No. 3:13-cv-367,2014 WL 1305696 (E.D. Va. Mar. 31,2014);
Stewart 2014 WL 2480076; Sanchez v. Vareo. No. 3:13-cv-400,2014 WL 1165862 (E.D. Va.

Mar. 21,2014); Contreras v. Davis. No. I:13cv772,2013 WL 6504654 (E.D. Va. Dec. 11,2013)

(Cacheris, J.); Johnson v. Ponton. No. 3:13-cv-404,2013 WL 5663068 (E.D. Va. Oct. 15,2013).
On November 12,2013, Johnson was appealed to the Fourth Circuit. See Case No. 13-7824. On

March 5,2015, the Fourth Circuit issued a decision in Johnson, finding that the rule in Miller is

not retroactive to cases on collateral review. See Johnson v. Ponton. CaseNo. 13-7824, slip op.,
at 2 (4th Cir. Mar. 5,2015).

In reaching this result in Johnson, the Fourth Circuit found that the rule in Miller was

clearly procedural, rather thansubstantive. A ruleis substantive if it "alters the range of conduct
or the class ofpersons thatthe lawpunishes." Schriro v. Summerlin. 542 U.S. 348,352 (2004).
The Fourth Circuitfound that the rule m Miller, ratherthan prohibiting all juvenile offenders to

be sentenced to lifewithout parole, prohibited such a sentence without expressly taking into

10

account an offender's age. See Johnson, slip op., at 13 (quoting Miller. 132 S. Ct. at 2458,2569,

2471). Thus, the court found the rule in Miller did not alter a specific class of individuals able to
receive a certain punishment, but merely placed limits on the procedure used to impose
sentences. The Fourth Circuit also found that the Miller rule was not a "watershed rule of

criminal procedure," as "the Supreme Court 'has repeatedly emphasized the rarity of new
bedrock rules of procedure.'" Johnson, slip op., at 14 (quoting United States v. Sanders. 247
F.3d 139,148 (4th Cir. 2001)). Specifically, the Fourth Circuit concluded that, because the rule
in Miller was a direct result of previous Supreme Court precedent, the rule did not break new

ground and did not qualify under the second Teaeue exception. See id.

Because the controlling rule in this circuit is now that Millerdoes not apply retroactively
to cases on collateral review, the instant petition must be dismissed on its merits, as well as its
timeliness.
IV. Conclusion

For the reasons stated above. Respondent's Motion to Dismiss must be granted, and the
petition must be dismissed. An appropriate Judgment and Order will issue.

Entered this

day of_

2015.

Alexandria, Virginia

T. S, Ellis, m .

United States DistrictJudge

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