Sawyer v. J.

Filing 18

MEMORANDUM OPINION re Motion to Dismiss. Signed by District Judge Liam O'Grady on 2/15/17. Copy mailed: yes(klau, )

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

Javon L. Sawyer,
Petitioner,
v.

)
)
)
)

Warden J. Kiser,
Respondent.

)
)
)

1:11
l:16cv40(GBL/TCB)

MEMORANDUM OPINION

THIS MATTER comes before the Court on a Motion to Dismiss a petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254 by Javon L. Sawyer, a Virginia inmate
proceeding pro se, to challenge the constitutionality of convictions entered in the Circuit Court

for the City of Suffolk. Respondent filed the instant motion along with a supporting brief and
exhibits on May 6,2016, and supplied petitioner with the notice required by Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K). (Dkt. No. 7-9). Petitioner filed a

response to the Motion to Dismiss on May 23, 2016. (Dkt. No. 11). Accordingly, this matter is
now ripe for disposition. For the reasons which follow, respondent's Motion to Dismiss will be

granted, and the petition will be dismissed with prejudice, as time-barred.
I. Procedural History

On November 15,2007, petitioner pleaded guilty to one count of receiving stolen

property which had been reduced from an original charge of grand larceny. Case No. CR07-104.
Following the preparation of a presentence report, he received a sentence of five years

incarceration with four years suspended. In a separate case stemming from the same incident,

petitioner was tried to a jury on a charge of possession of cocaine. Case No. CR07-829. The

jury found petitioner guilty of the charge and recommended a sentence of six years incarceration,

and the court sentenced petitioner in accordance with that recommendation.
On direct appeal, petitioner's counsel filed a brief pursuant to Anders v. California. 386
U.S. 738 (1967) in the case involving the receipt of stolen property, assigning the sole error that

the evidence was insufficient to support the conviction. Counsel likewise challenged the
conviction of possession of cocaine solely on the basis of the sufficiency of the evidence. The
appeals were consolidated, and the petitions for review of both convictions were denied on
September 2,2009. Sawver v. Commonwealth. R. No. 0393-09-1,0394-09-1 (Va. Ct. App.

Sept. 2,2009); Resp. Ex. B.1 Aftergranting petitioner a delayed appeal, the Supreme Court of
Virginia refused a petition for further review on April 8,2013. Sawver v. Commonwealth. R.
No. 122059 (Va. Apr. 8,2013); Resp. Ex. C.

On April 7, 2014, petitioner filed an application for a state writ of habeas corpus in the
Supreme Court of Virginia, arguing that his unspecified constitutional rights had been violated,
he was indigent and had no access to a law library, his guilty plea was the result of ineffective
representation and trickery, the Commonwealth refused to honor the plea agreement when he
failed a lie detector test, and his right to a speedy trial was violated. The petition was dismissed

on December 15,2014. Sawver v. Davis. R. No. 140673 (Va. Dec. 15,2014); Resp. Ex. E.
Petitioner then turned to the federal forum and filed the instant application for relief

pursuant to §2254 on December 17,2015.2 Because the petition was mistakenly mailed to the

lThe appellate court found that a third convictionfor a probation violation had not been preserved
for review.

2 pleading submitted by an incarcerated litigant is deemed filed whenthe prisoner delivers it to
A
prison officials for mailing. Lewis v. City ofRichmond Police Dep't. 947 F.2d 733 (4th Cir. 1991);

Fourth Circuit of Appeals, it was not received bythis Court until December 29, 2015.
II. The Petition is Untimely

A §2254 petition for a writ of habeas corpus mustbe dismissed if filed laterthan one year
after(1) thejudgment becomes final; (2) anystate-created impediment to filing a petition is
removed; (3) the United States Supreme Court recognizes 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). In the instant case, the Supreme Court of Virginia refused petitioner's
petition for review on direct appeal on April 8,2013. Resp. Ex. C. Therefore, the convictions
became final ninety (90) days later, on July 6,2013, when the time expired during which

petitioner could have petitioned the United States Supreme Court for a writ of certiorari. See U.S.
Sup. Ct. R. 13(1) (petitions for review are timely filed within 90 days of the entry ofjudgment by
a state court of last resort); see also Lawrence v. Florida. 549 U.S. 327, 333 (2007). Thus, the
§2254(d) one-year limitations period began to run on that date.

In calculating the one-year limitations period, the Court must exclude the time during

which properly-filed state collateral proceedingspursued by petitioner were pending. See 28
U.S.C. § 2244(d)(2); Pace v. DiGuglielmo. 544 U.S. 408 (2005) (determining that the definition
of "properly filed" state collateral proceedings, as required by § 2244(d)(2), is based on the

applicable state law as interpreted by state courts). Here, after petitioner's convictions became
final on July 7,2013, 275 days passed before he filed his petition for a state writ of habeas
corpus on April 7,2014. The state petition was dismissed on December 15,2014, and an

see also Houston v. Lack. 487 U.S. 266 (1988). Here, petitioner certified that he placed his petition
in the prison mailing system on December 17, 2015. Pet. at form p. 15.

additional 367 days elapsed before this federal proceeding was filed on December 17,2015.

Whenthese periods of untolledtime are combined they total 642 days, so the instant petition was
filed 277 days beyond the one-year limit. Accordingly, the petition is untimely pursuant to
§ 2244(d).
III. No Showing of Actual Innocence

Petitioner argues both on the face of the petition itself (Dkt. No. 1 at 15) and in his

response to the Motion to Dismiss (Dkt. No. 11) that the untimeliness of this petition should be

excused because he is actually innocent of thecrime of receiving stolen property.3 In McOuiggin
v. Perkins. 569 U.S. _, 133 S.Ct. 1924 (2013), the Supreme Court held that a convincing claim
of actual innocence can overcome the §2254(d) statute of limitations. However, as with an actual
innocence claim in the context of other procedural defaults, the exception applies only in a

"severely confined category" - that is, cases in which reliable new evidence shows that "it is
more likely than not that 'no reasonable juror' would have convicted" the petitioner had the
evidence been available at trial. Id., 133 S.Ct. at 1928, quoting Schlup v. Delo. 513 U.S. 298, 329

(1995). It is readily apparent that petitioner's argument in this case falls short of that exacting
standard.

At the plea colloquy on November 15,2007, the prosecutor summarized the evidence

supporting the charge of receiving stolen property as follows:
[I]f the Commonwealth were to proceed today with trial we would
have the testimony of LaTonya Johnson. She's the owner, on
November 30,2006, the owner ofa 1997 black Honda Accord valued
over $200. At that time she was residing at 1015 Nansemond

3As respondent points out, petitioner's actual innocence argument does not extend to the
conviction of possession of cocaine.

Parkway here in the City of Suffolk.

She started her car that morning around 5:20. She realized she left
something in her house. She went in her house and then back out to
where her car would have been. It was less than a minute. When she

got back her car was gone. She called the police. The car was later
recovered that day, and I'll get to that in a moment. There was no
restitution involved. She did not give anybody a spare key. She did
not give anyone permission or authority to take the car. And she
certainly did not give Mr. Sawyer or anybody else permission to take
that car.

Our testimony would have also included Officer Maxwell of the
Suffolk Police Department. He was on duty that morning around
5:20 in the morning and he was traveling in the City of Suffolk. He
heard from dispatch that call about the black Honda Accord. He saw
the black Honda and he followed the car through part ofthe city. He
activated his emergency equipment and attempted to make a stop,
pursuing the car to a location here in the City of Suffolk. At that
point the car stopped. A person later identified as the defendant left
the driver's seat and ultimately would have been apprehended. He
identified Mr. Sawyer as the only person in the car and the driver of
the car. Based on police dispatch and information he stopped that car
about 26 minutes after it was reported stolen.

We would also have the testimony ofTamisha White. She also lives
at 1015 Nansemond Parkway in the 400 building. She would testify
that the defendant was at her home around 4 a.m. that morning on
November 30. Was there when she left her home around five o'clock.

She also had a cell phone that was there at the building and when the
defendant was arrested her cell phone was on him, was in the car with
him. Her mother was also at the home at some point that day. She
arrived at home around six or seven o'clock that morning. The
defendant was not there.

The defendant had filed an alibi notice indicating he was elsewhere
at the time ofthe crime. He said there was a person that sold him the
car and then he drove off and then was stopped by Officer Maxwell.
His alibi notice information we have would have that occurring
within the time that the car was stolen.

Resp. Ex. D. T. 14-16.

In support of his current claim of actual innocence, petitioner has filed two statements;
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both are notarized but neither is sworn or signed under penalty of perjury. In one, dated 7-31-15,
Lashaun Martin stated:

On or about November 30, 2006 during the early morning hours
while I was babysitting for a friend I received a knock on the door.
I answered it and it was Javon Sawyer. He said he wanted to use my
car for a few hours. I informed him that my car wasn't in good
running condition. We talked for a while and he said he was leaving.
I walked with him a little ways but I had to keep my eye on the house
where the kids were. While we were walking a dark skinned guy
pulled up beside us in a black car. I had never seen him before but
Javon and him spoke as if they knew each other. Javon asked him
where did he get the car from and he said it was his girlfriend's car.
He asked Javon if he wanted to use it for a little while. Javon asked

him how much would it cost for him to use the car and he said $10

per hour. Javon said he had $40. The guy gave Javon the car with
the keys. I spoke with Javon's lawyer, Mr. Gregg Matthews, and told
him the same thing that I'm writing now. Mr. Sawyer did not steal
that car.

Pet, Dkt. No. 1 at ECF 35.

On August 3, 2015, Laguana White stated:

I introduced Javon Sawyer to a friend of mine who I met on a public
chat line. The guy was someone I met a few weeks before
introducing him to Javon. This guy went by the name of "Baltimore
Black." He later told me his name was Frederick Gray. I didn't know
if that was actually his name or not. He told me he was from
Baltimore, Maryland. However, a few days after the introduction
Javon called me from jail and asked me if I knew Baltimore Black's
real name because he rented a car from him that was stolen. I told

him I didn't know Baltimore Black [sic] real name and at that time I
didn't. I told Javon I hadn't heard anything from Baltimore Black
and I suspected that he was back in Maryland because he was only in
Virginia for a short time visiting family. I told Javon I would help
him if I could whenever I heard from Baltimore Black again. Javon
gave me the number to an attorney by the name ofGregory Matthews
and told me to call him if I got any helpful information. Shortly after
I got a call from Baltimore Black and he told me his real name was
Frederick Gray. He admitted to renting Javon a car after he had
stolen it. I got in touch with Mr. Matthews and told him everything
I knew. I also told him that I would be willing to testify about what

I knew on behalfofJavon Sawyer. After I spoke with Mr. Matthews
he promised he would schedule a meeting so he could get a written
statement.

Mr. Matthews never contacted me after that.

I tried

calling Mr. Matthews continuously without any success. He never
returned any of my calls. I was getting calls from the prosecution
attorney's office and I felt like they were trying to discourage me
from testifying for Javon Sawyer. I left Mr. Matthews another
message letting him know about this matter and once again he never
got back with me. I informed Javon of this situation and I let him
know that I would be willing to help him if he needed me.
Pet, Dkt. No. 1 at ECF 36.

The foregoing documents do not satisfy the Schlup criteria for a successful gateway claim

of actual innocence for several reasons. First, the information provided was not "newly
discovered" when the statements were written in 2015. At the plea hearing in 2007, it was noted
that petitioner had filed an alibi notice indicating he was elsewhere at the time of the crime and

that someone had sold him the car in which he was stopped by Officer Maxwell. Tr. 11/15/07 at
16. While the statements written in 2015 may have attempted to flesh out the details of that

scenario, the essential premise that petitioner had purchased the stolen vehicle from a third party
before he was stopped in the car by the police thus was known at the time he entered his plea.
Nonetheless, at the plea colloquy petitioner stated that he had discussed any possible defenses
with his lawyer, that he had discussed the plea with counsel and decided of his own accord to

enter a guilty plea, that he was doing so freely and voluntarily, and most importantly, that he was

pleading guilty to receiving stolen propertybecausehe was guilty of that crime. Tr. 11/15/07at 7
-8.

Second, the statements provided in 2015 are not reliable. As noted, they are neither

sworn nor signed under penalty of perjury. In addition, Ms. White's assertion that Baltimore
Black told her that he had stolen the car and then rented it to petitioner amounts to nothing more
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than inadmissible hearsay. And lastly, the information provided in the two statements would not
have changed the outcome if presented at a trial. Petitioner was arrested driving the stolen
vehicle within half an hour of its theft, in the vicinity where it was taken. Further, in the unlikely

event that a jury would have believed that he obtained the vehicle from a third party in the
interim, no reasonable juror would have concluded that he did not realize the car had been stolen,
since no one would "loan" a legally-obtained car to a stranger without providing any contact
information to ensure the return of the vehicle.

In sum, the evidence supplied by petitioner in support of his actual innocence claim is

insufficient to meet the requirements of McOuiggin. 133 S.Ct at 1928; see U.S. v. Mikalaiunas.
186 F.3d 490,494 (4th Cir. 1999), cert, denied. 529 U.S. 1010 (2000) (actual innocence

exception is satisfied only by a showing of actual factual innocence; a showing that petitioner is
legally but not factually innocent does not suffice). Accordingly, it is insufficient to overcome the
§2254(d) statute of limitations, and this petition is subject to dismissal as time-barred.
IV. No Statutory Tolling
A claim of newly-discovered evidence can also toll the limitations period pursuant to
§ 2244(d)(1)(D). Here, petitioner does not argue that what he characterizes as newly-discovered

evidence in the form of the two 2015 statements should trigger this provision, and even if he had
the argument would have been futile. It is recognized that under § 2244(d)(1)(D), a claim of

newly-discovered evidence must be filed within one year from "the date on which the factual

predicate of the claim or claims presented could have been discovered through the exercise of
due diligence." Section 2244(d)(1)(D) directs that the one-year period during which a habeas

petitioner may apply for relief based on newly-discovered evidence commences on "the date on

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which the factual predicate of the claim or claims presented could have been discovered through

the exercise of due diligence." Additionally, by its terms, § 2244(d)(1)(D) is triggered not when

a petitioner actually learns of some pertinent informationfrom newly-discovered evidence;
rather, it commences when he "could have ... discovered" it. Here, since the alibi notice

petitioner filed prior to the 2007 plea colloquy set out the essential factual elements of what he
now refers to as newly-discovered evidence, at this juncture petitioner would be precluded from
resorting to § 2244(d)(1)(D) to reset the limitations clock.
V. No Equitable Tolling

In his response to the respondent's Motion to Dismiss, petitioner argues that he received
ineffective assistance of counsel in connection with the entry of his guilty plea. (Dkt. No. 11)
While petitioner does not use the term, his argument might be liberally construed in deference to

his pro se status as seeking equitable tolling of the limitations period. The United States
Supreme Court has established that equitable tolling is applicable to the § 2244(d)(2) limitations
period. See Holland v. Florida. 560 U.S. 631 (2010) ("Now, like all 11 Courts of Appeals that
have considered the question, we hold that § 2244 (d) is subject to equitable tolling in
appropriate cases."). To qualify for equitable tolling, a petitioner must demonstrate both (1) that
he had been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing. Id. at 649, citing Pace v. DiGuglielmo. 544 U.S. 408,418
(2005). A petitioner asserting equitable tolling "'bears a strong burden to show specific facts'"
that demonstrate fulfillment of both elements of the test. Yang v. Archuleta. 525 F.3d 925, 928

(10th Cir. 2008) (quoting Brown v. Barrow. 512 F.3d 12304,1307 (11th Cir. 2008)). The

petitioner generally is obliged to specify the steps he took in diligently pursuing his federal claim.

Spencer v. Sutton. 239 F.3d 626, 630 (4th Cir. 2001); Miller v. Marr. 141 F.3d 976, 978 (10th
Cir. 1998). In addition, the petitioner must "demonstrate a causal relationship between the

extraordinary circumstance on whichthe claim for equitable tolling rests and the lateness of his
filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence,
could have filed on time notwithstanding the circumstances." Valverde v. Stinson. 224 F.3d 129,
134 (2d Cir. 2000); see also. Rouse v. Lee. 339 F.3d 238, 246 (4thCir. 2003). Here, petitioner's
allegations of error in connection with the entry of his guilty plea satisfy none of these criteria,
and because he fails to demonstrate any meritorious grounds for such relief, he is not entitled to
equitable tolling of the limitations period.
VI. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss will be granted, and the
petition will be dismissed, with prejudice, as time-barred. An appropriate Order and judgement
shall issue.

Entered this '^

day of FSinf a a^^

Alexandria, Virginia

2017.

hi

Liam O'Gra ._.
United Slates District Judge

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