Mabry v. Clarke

Filing 25

MEMORANDUM OPINION - For the foregoing reasons, the petition must be dismissed, as filed beyond the one-year statute of limitations period in § 2244(d). An appropriate judgment and Order shall issue. Signed by District Judge T. S. Ellis, III on 06/03/2015. (see Memorandum for details)(dvanm, )

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

Tremayne Juandal Mabiy,
Petitioner,

I:14cv453 (TSE/IDD)

V.

Harold Clarke,
Respondent.
MEMORANDUM OPINION

Tremayne Juandal Mabry, a Virginia inmate proceeding pro se, has filed a petition for a
writ of habeas corpus, piu^uant to 28 U.S.C. § 2254, challenging the validity of his conviction in
the Circuit Court for the County of Sussex, Virginia. The petition initially was filed on April 14,

2014. Respondent has filed a Motion to Dismissand Rule 5 Answer,with a supporting brief and
numerous exhibits. Dkts. 14,15,16. 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

response on December 16,2014. For the reasons that follow, the petition must be dismissed.
I.

On February 25,2009, a jury convicted petitioner of distribution of a schedule II
substance (cocaine) in the Circuit Court for the County of Sussex. Commonwealth v. Mabrv.

Case No. CR0800308-00 (Va. Cir. Ct. Feb. 25,2009). Petitioner also pleaded guilty to

distribution of imitation cocaine. Commonwealth v. Mabrv. CR0800307-00 (Va. Cir. Ct. May
20,2009). He was sentenced on May 20,2009 to sixteen years' incarceration and a $5,000 fine.
He also received a five-year suspended sentence for the charge of distribution of imitation

cocaine, to run concurrently with his sixteen-year sentence. Petitioner filed a directappeal in the
Court of Appeals ofVirginia, arguing that (1) the trial court erroneously denied his requestto

obtain a copy of the audio and video recordings used at trial; and (2) the evidence was
insufficient to support petitioner's conviction. The Court of Appeals denied the petition for

appeal by per curiam opinion on November 6,2009, and a three-judge panel denied a petition for
rehearing on February 9,2010. Mabrv v. Commonwealth. R. No. 1317-09-2 (Va. Ct. App. Nov.
6,2009 and Feb. 9,2010). On July 20,2010, the Supreme Court of Virginia refused petitioner's

petition for appeal. Mabrv v. Commonwealth. R. No. 100465 (Va. July 20,2010).
Petitioner filed a petition for writ of habeas corpus in the Supreme Court of Virginia,
arguing that (1) trial counsel was ineffective for failing to present evidence of mitigating
circumstances; (2) trial counsel was ineffective for failing to object to a statement of personal
opinion by the prosecutor; (3) trial counsel was ineffective for failing to object when the

prosecutor appealed to the sympathy and passions of the jury; (4) the prosecutor committed
misconduct by misleading the jury and giving his personal opinion during closing argument; and

(5) the prosecutor committed misconduct by appealing to the jury's sympathy during sentencing.
On November 9,2011, the court dismissed the petition as untimely filed. Mabrv v. Dir.. Dep't
of Corrs.. R. No. 111337 (Va. Nov. 9,2011). Petitioner filed a motion to reopen his petition on

January 22,2013, which the court denied on February 14,2013.

On April 14,2014, petitioner filed' the instant federal habeas petition, raising the
following claims for relief:
1. Petitioner is entitled to equitable tolling of the statute of limitations.
2. Petitioner is actually innocent of the crimes for which he was sentenced.
3. Petitioner's current incarceration violates the Fourteenth Amendment.

4. Petitioner's current incarceration violates the Eighth Amendment.

' Forpurposes of calculating thestatute of limitations, the petition is deemed 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^e prison mail system on April 14,2014. The court
received it on April 21,2014.

5. Petitioner's current incarceration is a direct result of evidence seized in
violation of the Fourth Amendment.

6. Petitioner's Due Process rights were denied when he was unable to inspect
and copy the video and audio recordings produced at trial.
7. Petitioner's trial was tainted by structural error.
8. Petitioner's conviction was obtained through pequred testimony.
9. Petitioner's conviction was the result of a Naoue violation.

10. The trial court abused its discretion by refiising to try petitioner and his codefendant in a joint trial.
11. Petitioner's Sixth Amendment right to confront the witnesses against him
was violated.

12. Trial counsel was ineffective for failing to investigate or present mitigating
evidence.

13. Trial counsel was ineffective for failing to move for a mistrial when the
prosecutor stated his personal opinion of the evidence and bolstered the testimony
of a Commonwealth witness.

14. Trial counsel was ineffective for failing to move for a mistrial when the
prosecutor appealed to the sympathy and passions ofthe jury.
15. Trial counsel was ineffective for failing to move for a joint trial.
16. Trial counsel was ineffective for failing to timely file a pre-trial motion.
17. Appellate coimsel was ineffective for failing to raise all colorable claims on
direct appeal.
18. The prosecutor misled the jury during closing argument.
19. The prosecutor improperiy appealed to the jury's sympathy and passions
during sentencing.
Respondent has filed a Motion to Dismiss petitioner's claims. Because the instant

petition isbarred bythe applicable statute of limitations, respondent's Motion must be granted.^
II.

A. 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) the recognition by the United States Supreme Court

^Thirteen ofpetitioner's claims have not been exhausted before the Supreme Court of
Virginia. Of the remaining six claims, five are procedurally barredfrom reviewby the Supreme
Court of Virginia's finding that his state petitionfor a writ of habeas corpuswas not filed in
accordance with Virginia Code § 8.01-654(A)(2). However, because the petition as a whole is
untimely, these additional procedural impediments need not be discussed.

of the constitutional right asserted; or (4) the factual predicate of the claim could have been
discovered with due diligence. 28 U.S.C. § 2244(d)(l)(A)-(D).
Based on the records of the state proceedings, petitioner's conviction became fmal on

October 18,2010, the last day on which he could have petitioned the United States Supreme

Court for a writ ofcertiorari.' In calculating the one-year statute oflimitations period, however,
a federal court must toll any time during which "a properly filed application for State postconviction or other collateral review... is pending." 28 U.S.C. § 2244(d)(2). Whether a state
post-conviction proceeding is "properly filed" is determined by applicable state law, as
interpreted by state courts. See Pace v. DiGuelielmo. 544 U.S. 408,413 (2005); Artuz v.
Bennett. 531 U.S. 4,8 (2000).

Petitionerfiled his petitionfor a writ of habeas corpus in the Supreme Court of Virginia

on July 22,2011.'* Because the Supreme Court ofVirginia found that this petition was not
timely filed, however, the petition was not a "property filed application for State post-conviction
or other collateral review," and therefore did not toll the running of the statute of limitations.

See Artuz. 531 U.S. at 8 ("[A]napplication is 'properly filed' when its delivery and acceptance
are in compliance with the applicable laws and rules governing filings. These usually prescribe,
for example, the form of the document, the time limits upon its delivery, the court and the office

in which it must be lodged, and the requisitefiling fee.") (emphasisin original) (intemal footnote

^See U.S. Sup. Ct. R. 13(1) (petitions for awrit ofcertiorari are timely iffiled wdthin 90 days
of the entry of final judgment by a state court oflast resort).

Petitioner datedhis petition July 20,2011, and stated that he delivered it to prison officials at
that time. The Supreme Court of Virginia received the petition on July22,2011, and

subsequently requested petitioner to provide a notarized statement indicating when the petition
wasactually mailed fi^om his correctional institution. When petitioner did not provide the
requested information within the required time period,the court found the petition to be
untimely.

omitted). Accordingly, the statute of limitations ran unchecked from October 18,2010, until

petitioner filed the instant petition on April 14,2014 - nearly three and a half years. The instant
petition was thus filed nearly two and a half years beyond the one-year limitation period of §
2244(d).
B. Equitable Tolling

Petitioner argues that he is entitled to equitable tolling of the statute of limitations
"because the Supreme Court [of Virginia] erred and abused its discretion in its decision to
dismiss petitioner's State Habeas Petition [as untimely]." Pet. Supp., at 8. Petitioner indicated

on his state habeas petition that he placed it in the prison mail system on July 20,2011 - the last

day of his one-year period to submit the petition. He states that, according to Houston. 487 U.S.

266, and Rule 3 of the Rules Governing § 2254 Cases, his petitiontherefore was timely filed. He
"submits there should not have been any issue as to proof oftimely filing being that his petition
was received by the clerk two (2) days after the date petitioner's petition was signed and
notarized." Pet. Supp., at 8. He thus contends that the Supreme Court of Virginia erroneously
dismissed his petition as untimely filed. In addition, he argues that, after the court requested
petitioner to provide a notarized statement indicating the day on which the petition was mailed,

he acted with due diligenceto obtain one, but that, "due to [his] inabilityto control prison
official[s]," he was unable to obtain such a certificate imtil November 2,2012. Id at 2, 8-9.
Petitioner states that he submitted his notarized statement as soon as he obtained it, and then

complied with the court's instructions to submit a motion to reopen his petition. Id at 2. He

thus states that his petition wasuntimely "dueto an extraordinary circumstance beyond his
control,"and that the statute of lunitations shouldbe equitably tolled. Id at 9.

"[Section] 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).

However, "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 and gross injustice would result" Rouse. 339 F.3d at 246.

Therefore, for equitable tolling to apply, a petitioner must establish that (1) he has been

diligently pursuing his rights, and (2) some "extraordinary circumstance," beyond his control and
extemal to his own conduct, interfered with his ability to timely file his petition. Holland. 560
U.S. at 649 (quoting Pace. 544 U.S. at 418).

Petitioner's arguments are msufficient to entitle him to equitable tollmg. The record
reflects that petitioner signed his state habeas corpus petition on July 20,2011. He states that he

placed the petition in the prison mail system that afternoon. Pet. Supp., at 9. The mail was

picked up and delivered on July 21,2011. Id at 10. The Supreme Court of Virginia received the
petition on July 22,2011. On July 25,2011, petitioner received a letter from the Supreme Court
of Virginia, stating "that petitioner's. Petition for Writ of Habeas Corpus [sic] was received on
July 22,2011, and that the envelope in which it was mailed was stamped on July 21,2011, as
being received by the mailroom and was also post marked the same date." Id at 2. The court

therefore instructed plaintiffto provide the court with a "prison ofiRcials [sic] notarized statement

showingthe date the Habeas Petition was deposited in the institutions [sic] internal mail system."

Id By a later letter, the court instructed petitionto provide this information by September 9,
2011. When petitioner did not comply with the court's instructions, the court dismissed the
petition as untimely on November 9,2011. Id

Petitioner statesthat, on November 2,2012, he was finally able to obtain the required
documentation, and he submitted it to the court. Id Significantly, petitioner was not able to

obtain a notarizedcertificateconfirminghis assertion that the prison received his petition on July

20,2011. Rather, petitioner has mcluded a notarized copy of the institution's mail log, which
indicatesthat his petition was not receivedin the mailroom until July 21,2011. ^

id Ex. D-1.

Accordingly, petitioner's argument that the Supreme Court of Virginia erroneously dismissed his
petition as untimely filed has no merit. The Supreme Court of Virginia, relying on the dates it
was provided, found that petitioner filed his petition in the prison mail on July 21,2011. As

VirginiaCode § 8.01-654(A)(2) clearlyrequires petitions to be filed withinone year ofthe final
judgment in a criminal case, its strict adherence to this statuteis not cause for equitable tolling of
the statute of limitations.

Petitioner also arguesthat he is entitled to equitable tollingfor the period duringwhich he
was attempting to obtain a notarized statement firom prisonofficials, as well as the time during

which he waited for a final decision fi-om the Supreme Court of Virginia on his motion to reopen
his habeas petition. Assimiing without deciding thatpetitioner is entitled to equitable tolling for
this period, his petition is still untimely. The Supreme Court of Virginia denied his motion to

reopen his petition on February 14,2013. Petitioner did not file the instant petition until April
14,2014. He has not established why he waited morethan one year after receiving this notice to
file the instantpetition. A prisonerwho fails to protecthis rightsdiligently cannot take
advantage of equitable tolling. See^ e^, Soencer v. Sutton. 239 F.3d 626,630-31 (4th Cir.
2001). Accordingly, petitioner is not entitled to equitable tolling.

III.

Petitionerattemptsto overcome the statute of limitations by arguing that he is actually

innocent ofthe crimes for which he was convicted.® Pursuant to McOuippan v. Perkins, a
petitioner may use a credible shovnng of actual innocence as a gateway to overcome the statute

of limitations and have his claun considered on the merits. McOuieeen. _ U.S.

133 S. Ct.

1924,1928 (2013). To make such a credible showing of actual innocence, a petitioner must
presentnew evidence that, whenconsidered along with all otherevidence presented in the case,
proves that "it is more likely than not that no reasonable juror would have found the defendant

guilty." Schlup. 513 U.S. at 324,329: see also Murrav v. Carrier. 477 U.S. 478,495 (1986)

(plurality opinion)(internal citations and quotation marksomitted) ("[T]heprinciples ofcomity
and fmality that inform the conceptsof cause and prejudicemust yield to the imperative of
correcting a ilmdamentally unjust incarceration"). Credible claims of actual innocence are rare,

and a federal court should apply such a claim only in the most "extraordinary" of circumstances.
See, e.g.. House. 547 U.S. at 538 (quoting Schluo. 513 U.S. at 327); Wilson v. Greene. 155 F.3d

396,404 (4th Cir. 1998)("Claims ofactual innocence... should not be granted casually.")
(internal citations omitted).

To present a credible claim of actual innocence, a petitioner must present "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. This

standard reflects the fact that actual innocence is basedon factual, rather than legal, innocence.
See, e.g.. Savyyer v. Whitlev. 503 U.S. 333,339-40 (1992). Thus, a petitioner must do more than

®
Petitioner also argues that his actual innocence ofhis convictions excuses his procedural
default, based on House v. Bell. 547U.S. 518,521 (2006) and Schlup v. Delo. 513 U.S. 298,
319-22 (1995)).
8

simply show that the evidence used to convict him was legally insufficient- he must present new
evidence tending to show that he is factually innocent of his crime. ^

Anderson v. Clarke. No.

3:13cv528,2014WL 6712639, at *3 (E.D. Va. Nov. 26,2014) (citing Calderon v. Thompson.

523 U.S. 538,559 (1998)),

600 F. App'x 177 (Mem.) (4th Cir. Apr. 23,2015).

Petitioner states that he has met his burden of proving actual iimocence by obtaining two
affidavits, dated June 13,2011 and July 6,2011, by his previous co-defendant, William Elder, in

which Elder confessed to commission of petitioner's crime and swore that petitioner had no

involvement.^ See Pet. Supp., at 12-21; Exs. E, F. Petitioner states that these affidavits are
reliable and corroborated by other evidence, see id at 12-13, and therefore present
"overwhelming evidence that it is apparent that petitioner is actually innocent of the crime in
which he is wrongfully incarcerated for." Id at 14. He argues that, had this evidence been

presented at trial, no rational jury could have found him guilty of his crimes. See id at 20.
Petitioner's evidence is not sufficient to show that he is actually innocent of the crimes
for which he was convicted. To prove actual mnocence, a petitioner must present newly
discovered reliable evidence that shows his innocence of the crime. Post-conviction statements

made by other participants in the crime are generally not sufficient to meet this standard. See,

e.g.. Carter V. Virginia. No. 3:09cvl21-HEH, 2010 WL 331758, at *6 (E.D. Va. Jan. 26,2010),

afFd. 390 F. App'x 282 (4th Cir. Aug. 11,2010) (quoting Schlup. 513 U.S. at 324) ("To accept
such commonplace declarations would ignore the Supreme Court's admonition that the quality of

evidence necessary to support a claim of actual innocence 'is obviously unavailable in the vast
majority of cases.'"). This is particularly true when, as here, the affidavits are sworn to several

^Elder pleaded guilty to both distribution ofanimitation controlled substance and distribution
of a controlled substance on May 18,2009. Commonwealth v. Elder. Case No. CR080029000/CR0800292-00 (Va. Cir. Ct. May 18,2009).

years after the co-defendant was convicted.' See» e^g^ United States v. Lichtv. 616 F.3d 321,
375 (4th Cir. 2010) (quoting United States v. Johnson. 487 F.2d 1278,1279 (4th Cir. 1973)
("Post-trial recantations oftestimony are 'looked upon with the utmost suspicion.'").

Lastly, the affidavits petitioner provides are of onlydubious credibility. Thehandwriting
of the June13,2011 by Elderaffidavit looks dramatically different from the handwriting on the
July 6,2011 affidavit by Elder, thereby casting doubt on the affidavits' veracity. Compare Pet.

Supp. Ex. E, with Pet. Supp. Ex. F. Moreover, on both documents, the signature looks to be in
an entirely differenthandwriting fi-om the handwriting on the affidavit itself, castingdoubton
whether the author of the signature is the author of the affidavit. Lastly, the second affidavit was
signed and notarized on July 6,2011, but is dated as written on June 29,2011, so it is uncertain

whether the notarization is valid. Therefore, even ifpetitioner otherwise could rely on affidavits

to establish actual innocence,the inherently incredible nature of these affidavits forecloses his

claim. He has not metthe gatewayprovisions of Schluo and McOuiggeru and therefore cannot
overcome the procedural bar or the statute of limitations.
IV.

For the foregoing reasons,the petitionmust be dismissed, as filed beyondthe one-year
statute of limitations period in § 2244(d). An appropriate judgment and Order shall issue.

Entered this

O

day of.

2015.

T.S. Ellis, m

Alexandria, Virginia

United States Di (trict Judge

' Petitioner has also failed to explain why, ifElder executed these affidavit/before petitioner
submitted his state petition fora writof habeas coipus, petitioner did notinclude them with his
state petition. See McOuiggen. 133 S. Ct. at 1935 ("Unexplained delay in presenting new
evidence bears on thedetermination whether the petition hasmade therequisite showing.").
10