McMillian v. Clarke
MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 11/30/2017. (c/s to petitioner)(dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Derreak Lament McMillian,
Derreak Lamont McMillian, a Virginia inmate proceeding pro se, has filed a petition for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of
convictions entered in the Circuit Court of the City of Chesapeake. The matter is before the
Court on the respondent's Motion to Dismiss the petition.
In December, 2009, McMillian was convicted following a jury trial of murder, grand
larceny, and use of a firearm in the commission of a felony. He received an aggregate sentence
of 68 years imprisonment withten years suspended. CaseNos. CR07-2291, -2292 and -2310.
The convictions were affirmed in an unpublished memorandum opinion on March 1,2011.
McMillian v. Commonwealth. R. No. 0455-10-1 (Va. Ct. App. Mar. 1, 2011). On August 26,
2011, the Supreme Court of Virginia refused McMillian's petition for further appeal. McMillian
V. Commonwealth. R. No. 110592 (Va. Aug. 26,2011).
On May 8,2005, McMillian filed a petition for unspecified reliefin the Circuit Court of
the Cityof Chesapeake. CaseNo. CL15001143-00. It appears from the Virginia Courts Case
Information System thatthe petition may still remain pending, as the website does not indicate its
disposition. On August 21,2015, McMillian also filed a complaint for unspecified relief in the
same court. Case No. 15001944-00. In that instance judgment was entered for the defendant on
October 27,2015, and McMillian filed an appeal on November 18,2015.
McMillian filed the instant petition for habeas corpus relief onFebruary 17,2017.' In it,
he makes the following claims:
The trial court abused its discretion by admitting
evidence of other crimes.
He was the victim of prosecutorial misconduct when
the Commonwealth proffered false information to the
trial court regarding other crimes he allegedly
When "the prejudicial presentment of [evidence of]
other crimes being committed" is discounted, the
remaining evidence is insufficient to sustain the
On May 30,2017, respondent filed a Rule 5 Response and a Motion to Dismiss the
petition with a supporting brief, and provided petitioner withthe notice required by Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. [Dkt. No. 16 -19] Petitioner
subsequently filed a reply in opposition. [Dkt. No. 20] Accordingly, this matter is ripe for
Respondent advances several arguments regarding the adjudication of this petition, all of
which are meritorious. The Court finds that the threshold and hence dispositive consideration is
'Because petitioner is incarcerated, the filing date of his motion is deemed to be the date he
delivered it to prison authorities for mailing. Houston v. Lack. 487 U.S. 266 (1988). The petition
in this case was executedon February 17,2017, Dkt. No. 1 at 18, and in the absence ofevidence to
the contraiy the Court assumes it was delivered for mailing that same day.
the fact that the petition is time-barred.
A petition for a writ of habeas corpus must be dismissed if filed later than one year after
(1) the judgment becomes final; (2) any state-created impedimentto 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 this case, the Supreme Courtof Virginia refused McMillian's petition for
review on direct appeal on August 26,2011. McMillianv. Commonwealth. R. No. 110592.
Therefore, the conviction became final ninety (90) days later, on November 24,2011, when the
time expired during whichhe couldhave petitioned the United States Supreme Courtfor a writ
of certiorari. S^ U.S. Sup. Ct. R. 13(1) (petitions for review are timely filed within 90 days of
the entry of judgment by a state court of last resort); ^
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 calculatingthe one-yearlimitationsperiod, the Court generally must exclude the time
during whichproperly-filed state collateral proceedings pursued by a petitioner were pending.
See 28 U.S.C. § 2244(d)(2); Pace v. DiGuslielmo. 544 U.S. 408 (2005) (determining that the
definition of "properly filed" state collateralproceedings, as required by § 2244(d)(2), is based
on the applicable state law as interpreted by state courts). Here, however, McMillian did not
commence postconviction proceedings until Augustand October of 2015, when he filed the two
actions in the trial court described above. Since by then well over three years had elapsed since
his convictions had become final, the pendency of those state actions could no longer toll the
limitations period. See Ferguson v. Palmateer. 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection
2244(d) does not permit the reinitiation of the limitationsperiod that has ended before the state
petition was filed."); Websterv. Moore. 199 F.3d 1256,1259 (11th Cir. 2000) (holdingthat a
state postconviction motion filed after expiration of the limitations period cannottoll the period,
because there is no period remainingto be tolled); Rashid v. Khulmann. 991 F.Supp. 254,259
(S.D.N.Y. 1998) ("Once the limitations period is expired, collateral petitions can no longer serve
to avoid a statute of limitations.")^ Accordingly, this petition is untimely under § 2244(d), unless
petitioner can establish that the statute of limitationsdoes not apply or should otherwise be
Hill v. Braxton. 277 F.3d 701,707 (4th Cir. 2002) (requiring notice and the
opportunity to respond before a sua sponte dismissal under § 2244(d)).
On the face of his petition, McMillian argues "that the statute of limitations, which is a
procedural bar to the consideration of the petition, does not apply ... in that I am actually innocent
of the crime for which I was convicted." Pet. at 16. In McOuiggin v. Perkins. 569 U.S.
S.Ct. 1924 (2013), the Supreme Court held that a convincing claim of actual innocence can
overcomethe §2254(d)statute of limitations. As with an actual innocenceclaim in the context
of other procedural defauhs, however, the exception applies only in a "severely confined
category" - that is, casesin which reliable new evidence showsthat "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, quotingSchlupv. Delo. 513 U.S. 298, 329 (1995). It is readily
apparent that petitioner's argument in this case falls shortof meeting that exacting standard.
McMillian argues specifically that he "recently came into possession of evidence" that
two North Carolina charges were wrongfully included in the prosecution's proffer of "other
^Because these state postconviction actions were filed after the AEDPA limitations period
expired, it is unnecessary to consider whether theywere "properly filed"or to attempt to clarify their
natures which at present are unclear.
crimes" evidence, because one was dismissed after his trial on the instant charges and the other
was not his at all. Pet. at 16; Reply at 2. He attributes their inclusion in the proffer to
prosecutorial misconduct, and he does not supply copies of the alleged newly-discovered
evidence to which he refers. McMillian concludes that "use of this newly-discovered evidence,
which discoimts other evidence, shows that I did not commit the crimes which I was found guilty
of...." Pet. at 16.
On directappeal, McMillian argued that the trial courtabused its discretion in admitting
evidence showing that he had committed othercrimes for the purpose of establishing his identity
through modusoperandi. The Court of Appeals of Virginiarejected his contention for the
Here, there was sufficient evidence, other than the evidence of
[McMillian's] prior crimes, to find [him] guilty beyond a reasonable
doubt. [McMillian] stole a dump truck and drove it to a truck stop,
where Ae victim confronted him. [McMillian] shot the victim who
died from the gunshot wounds. A witaess was close enough to the
scene to observe that the driver of the dump truck was wearing a
brown fatigue jacket and glasses.
[McMillian] had driven away from the scene. The police received a
report of the shooting, saw the dump truck, and followed it until it
traveled over railroad tracks. When the police were eventually able
to access the dump truck, the passenger seat and passenger area ofthe
cab were on fire. As the police and fire [sic] responded to the
incident, [McMillian], who lived nearby, returned to the scene and
asked Officer Goolsby what happened. Goolsby took [McMillian's]
name and address and sent detectives to the address. That same night,
detectives went to [McMillian's] residence and found a jacket, which
matched the description ofthe jacket worn by the driver ofthe dump
truck, on the front porch. The detectives obtained a search warrant
and found a 9-millimeter Hi-Point handgun on the wheel well ofa car
parked in the driveway. The police also found two 9-millimeter
cartridges inside the cab of the dump truck. The assistant chief
medical examiner testified that bullets were recovered from inside the
At trial, the Commonwealth called a firearms expert to testify at the
trial. By comparing the cartridges found in the cab ofthe dump truck
and the gun found in the wheel well of the car in [McMillian's]
driveway, the firearms expert was able to determine that the
cartridges were fired from the gun. In addition, the firearms expert
testified that the bullets from the victim were fired from the same
The gun belonged to a woman appellant knew. [McMillian] dated the
woman's sister and stayed at their house. [McMillian] was with the
woman when she bought the gun and later helped her with the gun
when it jammed. A few days later, the woman noticed that the gun
was missing, and around the same time, [McMillian] stopped coming
to her house. The woman confronted [McMillian] about the missing
gun, and he denied taking it but offered to pay her for it.
Considering the circumstances of this case, there was substantial
evidence supporting the determination of the jury. The evidence of
the prior crimes did not substantially influence the verdict because
there was sufficient evidence, particularly regarding the
circumstantially corroborated eyewitness testimony, the
circumstances regarding the gun used in the crime, and the testimony
ofthe firearms expert, to find [McMillian] guilty beyond a reasonable
doubt. Thus, it cannot be said with fair assurance, after pondering all
that happened without stripping the erroneous action from the whole,
that the judgment was substantially swayed by the error alleged
therein. Assuming without deciding that there was an error in
admitting the evidence of the prior crimes, it was harmless.
McMillian v. Commonwealth. R. No. 0455-10-1, slip op. at 3-4. Because the foregoing opinion
was the last reasoned state court decision, its reasoning is imputed to the Supreme Court of
Virginia, which refused further appeal without explanation.
Ylst v. Nunnemaker. 501 U.S.
797, 803 (1991).
The AEDPA "requires federal habeas courts to presume the correctness of state courts'
factual findings unless applicants rebut this presumptionwith 'clear and convincingevidence.'"
Schriro v. Mandrisan. 550 U.S. 465,473-74 (2007). Based upon the facts described by the
Virginia courts, it is readily apparent that there was ample evidence presented to support
McMillian's convictions aside from the evidence of his prior crimes. Here, then, assuming
without deciding that the alleged newly-discovered evidence would call into question two of the
prior crimes,their inclusion in the prosecution's proffercannot be said to have affected the
outcome of the trial. Accordingly, the newly-discovered evidence alleged by petitioner in
support of his actual innocenceclaim is insufficient to meet the requirements of McOuiggin, 133
S.Ct. at 1928, and does not suffice to overcome the §2254(d) statute of limitations.
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).
In his reply to the respondent's Motion to Dismiss, McMillian argues that the he
exercised diligence in pursuing the newly-discovered evidence but was limited in his ability to do
so "considering [his] incarceration." Reply,
3 - 4. While petitioner does not use the term, this
argument might be liberally construed in deference to his eto 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.
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 beenpursuing 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 burdento show specific facts'" that demonstrate fiilfillment of both elementsof 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
diligentlypursuing his federal claim. Spencerv. 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, McMillian's conclusory allegation that his status as a prisoner prevented
him from pursuing federal habeas relief more diligently falls well short of these requirements,
and because he fails to demonstrate any meritorious grounds for such relief, he is not entitled to
equitable tolling of the limitations period.
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 judgment
Entered this 3
day of aJ
Anthony J. Trenga
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