Couvington v. Clarke
MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 01/11/2018. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Harold W. Clarke,
Willie Couvington, a Virginia inmate proceeding pro se, has filed a petitionfor a writ of
habeas corpus pursuantto 28 U.S.C. § 2254, challenging the constitutionality of convictions
entered in the Portsmouth Circuit Court. Case Nos. CR03-1190-01 through -05, -07, CR03-1586-
01 through -04 and CR03-1191-02. Before the Courtare the respondent's Motion to Dismiss the
petition and two motions for miscellaneous relief by petitioner.
On November 3,2003, Couvington pleaded guilty to five counts ofrobbery, four counts
of unlawful use of a firearm, and two counts of malicious wounding. He received a sentence of
55 years incarceration with 11 years suspended, and he took no direct appeal.
On July 16,2012, Couvington filed a petition for a state writ of habeas corpus in the
Portsmouth court, assertedly seeking to obtain a belated direct appeal of the convictions at issue
here. See Resp. Ex. C, 19. The court dismissed the petition on September4, 2012, on the
holding that it was filed outside the two-year limitations period prescribed in Va. Code §8.01654(A)(2). Resp. Ex. D, T|2. Couvington attempted to appeal that determination to the Supreme
Courtof Virginia, but the appeal was dismissed on the ground that the notice of appeal was filed
untimely. Couvingtonv. Clarke. R. No. 130824 (Va. July 26, 2013); Resp. Ex. B.
On October 15,2015,Couvington filed a second state habeas corpus application in which
he raised the following claims:
Counsel was ineffective for coercing him to enter
the guilty pleas by misadvising him that he would
be admitted to the Youthful Offender Program.
His pleas were not entered intelligently and
voluntarily because counsel misadvised him that he
would be admitted to the Youthful Offender
He was not competent to enter the guilty pleas.
Counsel was ineffective for failing to move to
suppress incriminating statements petitioner gave to
Resp. Ex. C. By Order entered on March 27,2017, the Portsmouth Circuit Court denied the
petition on the express holdings that it was both time-barred pursuant to Va. Code §8.01654(A)(2) and successive in violation of Va. Code §8.01-654(B)(2), which requires that "[n]o
writ shall be granted on the basis of any allegationthe facts of which petitioner had knowledge of
at the time of filing any previous petition." Resp. Ex. D. Couvington appealed the circuit court's
decision to the Supreme Court of Virginia, which refused the petition for appeal after finding "no
reversible error in the judgment complained of" Couvington v. Clarke. R. No. 161061 (Va. Apr.
11,2017); Resp. Ex. F.
Couvington then turned to the federal forum and filed the instant application for relief
pursuant to §2254 by placing it into his institution's mailing system on July 14, 2017. [Dkt. No.
1 at 15] In it, he makes the following claims:
Counsel provided ineffective assistance by coercing
him to enter an unintelligent guilty plea by
misadvising him that he would be admitted to the
Youthful Offender Program.
Counsel provided ineffective assistance by failing to
move to suppress petitioner's involuntary
statements to the police.
[Dkt. No. 1, Att. at p. I]
On October 30, 2017, respondent filed a Rule 5 Response and a Motion to Dismiss the
petition with a supporting briefand exhibits, and provided petitioner with the notice required by
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. [Dkt. No. 10-13]
Petitioner subsequently filed an opposition [Dkt. No. 15] along with a Motion to Expand the
Record. [Dkt. No. 16] Accordingly, this matter is ripe for disposition.
IL Exhaustion and Procedural Default
Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in
the appropriate state court. 28 U.S.C. § 2254(b); Granberrv v Green 481 U.S. 129 (1987); Rose
V. Lundv. 455 U.S. 509 (1982). To comply with the exhaustion requirement, a petitioner "must
give the state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review process." O'Sullivan v. BoerckeL 526
U.S. 838, 845 (1999); Duncan v. Henrv> 513 U.S. 364 (1995). Thus, in Virginia, a § 2254
petitioner must first have presented the same factual and legal claims to the Supreme Court of
Virginia either by way of a direct appeal, a state habeas corpus petition, or an appeal from a
circuit court's denial of a state habeas petition. Picard v. Connor. 404 U.S. 270, 275-78 (1971);
Matthews v. Evatt. 105 F.3d 907,910-11 (4th Cir. 1997). Both of the claims Couvington makes
in this federal action were raised in his second state habeas corpus petition and thus are
On federal habeas corpus review, § 2254(d) mandates that a state court's finding of
procedural defaultbe presumed correct, provided that the state courtreliedexplicitly on
procedural grounds to denypetitioner reliefand that the procedural rule reliedon is an
independent and adequate state ground for denying relief Fordv. Georgia. 498 U.S. 411,423-24
(1991). In this case, Couvington's present claims were denied by the habeas trial courtas both
time-barred pursuant to Va. Code §8.01-654(A)(2) and successive in violation of Va. Code
§8.01-654(B)(2), and the Supreme Court ofVirginia subsequently affirmed that determination.'
Resp. Ex. D, F. Both of these reasons have been held to be adequate and independent state law
grounds preventing federal habeas review of procedurally defaulted claims. S^ Sparrow v.
Dir.. Dep't of Corrections. 439 F.Supp. 2d 584, 587(E. D. Va. 2006) (finding the limitations
period of Va. Code §8.01-654(A)(2) to be adequate and independent); Mackall v. Aneelone. 131
F.3d 442,446 (4th Cir. 1997) (determining procedural bar of successive habeas applications in
Va. Code §8.01-654(B)(2) to be a well-recognized adequate and independentground).
Therefore, the claims raised in this petition are procedurally defaulted.
Federal courts may not reviewa barredclaim absent a showing of cause and prejudice or
a fundamental miscarriage ofjustice, such as actual innocence. Harris v. Reed. 489 U.S. 255,
260 (1989). The existence of cause ordinarily turns upon a showing of (1) a denial of effective
assistance of counsel, (2) a factor external to the defense which impededcompliance with the
state procedural rule, or (3) the novelty of the claim. S^ Coleman v Thompson. 501 U.S. 722,
753-54 (1991); Clozzav. Murrav. 913 F.2d 1092,1104 (4th Cir. 1990); Clanton. 845 F.2d at
1241-42. Importantly, a court neednot consider the issue of prejudice in the absence of cause.
See Komahrens v. Evatt. 66 F.3d 1350,1359 (4th Cir. 1995). cert, denied. 517 U.S. 1171 (1996).
'Although petitioner here expresses hisposition in two claims, they arecompilations of thesame
arguments he presented as four claims in his second state habeas action.
In his Motion to Apply [sic] to Respondent Motion to Dismiss, Couvington argues that
the procedural default of his current claims was caused byineffective assistance of counsel. [Dkt.
No. 7 at 5] He explains that he was unable to file his state habeas corpusaction in a timely
manner because he was untrained in the law and housed at an institution with limited access to
the law library, id at 2, and he did not receive his case file from counsel until June 30,2011, id.
at 3. Neither of these conclusorycontentionsis sufficientto establish cause and prejudice.
Petitioner does not explam in any detail whatever the manner in which his pro^ status and his
alleged inability to access the law library prevented him from raising timely habeas claims, and
such cursory allegations do not suffice to overcome a procedural default.
To the extent that Couvingtonattempts to establish cause and prejudice for the procedural
default of his claims by pointing to his counsel's ineffective assistance, his statements again are
entirely conclusory withthe exception of the allegation that he did not receive his case file from
counsel until June 30,2011. On this record, that circumstance does not establish cause.
Couvington did not file his first pro se habeas petitionseekinga belatedappeal until July 16,
2012, over a year after he admittedlyreceivedhis case file from counsel, and his second habeas
application did not follow until October 15, 2015, over threeyears later. Clearly, then,
Couvington's ownlackof diligence was the principal reason for the lateness of his state habeas
actions, and cause and prejudice for the default of his claims has not been shown.
Couvington's argument that the procedural default of his present claims should be
excused based on his lawyer's assertedly ineffective assistance fails for a third reason. "[A]
claim of ineffective assistance [generally must]... be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default." Edwards v.
Carpenter. 529 U.S. 446,452(2000), quoting Murray v. Carrier. 477 U.S. 478,489 (1986). In
this case, Couvington failed to arguethat he received ineffective assistance in a timely state
postconviction proceeding, andno claim of ineffective assistance was considered on the merits as
an independentclaim by the Virginia courts. For these reasons, petitioner's claims are
procedurally defaulted from federal review.
IIL Time Bar
Even if Couvington's claims were not procedurally defaulted, they still would not be
cognizable here because his petition was filed outside the applicable one-year statute of
limitations. A federal petitionfor a writ of habeas corpus must be dismissed if filed later than
one year after (1) thejudgmentbecomes final; (2) any state-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 claimcouldhave beendiscovered with due diligence.
28 U.S.C. § 2244(d)(l)(A)-(D).
In this case, Couvington's convictions were entered on November 3,2003. Pet. at 1.
Because he took no directappeal, the convictions became final thirtydayslater, on December 3,
2003. United States v. Williams. 139 F.3d 896 (table), 1998 WL 120116 (4th Cir. Mar. 5, 1998)
at *2 ("Under Virginia law, a conviction is final thirty days afterthe entry of thejudgment of
conviction."). The limitations clock therefore began to run on that date.
In calculating the one-year limitations period, the Court generally must exclude the time
during which state collateral proceedings pursued by petitioner were pending. ^
28 U.S.C. §
2244(d)(2); Pace v. DiGuelielmo. 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 bystate courts). Here, however, Couvington didnot
commence a postconviction proceeding until June 11, 2012, when he filed his first state habeas
corpus petition in the trial court. Since by then over eight years had elapsed since the
convictions had become final, the pendency of a state action could no longer toll the limitations
period. See Fergusonv. 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."); Webster v. Moore. 199 F.3d 1256,1259 (11th Cir. 2000) (holding that a state
postconviction motion filed afterexpiration of the limitations period cannottoll the period,
becausethere is no period remaining to be tolled); Rashidv. 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).
In his Motion to Apply to Respondent Motion to Dismiss, Couvington argues essentially
that the limitations periodshould be equitably tolled in his case because he received ineffective
assistance when counsel failed to provide his case file in a timely manner and failed to move to
withdraw the guilty pleas. [Dkt. No. 15 at 2-3] The United States Supreme Court has established
that equitable tolling is applicable to the § 2244(d)(2) limitations period. See Hollandv. Florida.
560 U.S. 631 (2010). To qualify for equitabletolling, a petitioner must demonstrate both that (1)
he had beenpursuing his rights diligently, and (2) some extraordinary circumstance stood in his
way and prevented timely filing. Id at 649, citing Pace. 544 at 418. The petitioner is obliged to
specify the steps he took in diligently pursuing his federal claim,and a lack of diligence generally
acts to negate the application of equitable tolling. Spencer v. Sutton. 239 F.3d626, 630 (4th Cir.
2001). In addition, the petitioner must "demonstrate a causal relationship between the
extraordinary circumstance on which the claim for equitable tolling rests andthe lateness of his
filing, a demonstration that cannot be made if the petitioner, acting withreasonable diligence,
could have filed on time notwithstanding the circumstances." Valverde v. Stinson. 224 F.3d 129,
134 (2d Cir. 2000). It is widely recognized that equitable tolling is to be applied only very
infrequently. Rouse v. Lee. 339 F.3d 238,246 (4thCir. 2003) ("We believe, therefore, that any
resortto equity must be reserved for those rare instances where - due to circumstances external to
the party's own conduct - it would be unconscionable to enforce the limitation period against the
party and gross injustice would result.")
The extraordinary remedy of equitable tolling is not warranted in this case. To the extent
that Couvington attemptsto justify the lateness of this petition with assertions that counsel
provided ineffective assistance, his statementsare conclusory and he offers no specific facts to
demonstrate that counsel's efforts were causally related to and prevented his timely filing of this
petition. Even were that not so, ineffective assistanceeven if shown rarely provides a basis for
Rouse. 339 F.3d at 248 (quoting Beervv. Ault. 312 F.3d 948, 951 (8th Cir.
2002) for the proposition that "[i]neffective assistance of counsel generally does not warrant
also. Harris. 209 F.3d at 330-31; Broadnax v. Aneelone. No. 2:02cvl58,
2002 WL 32392670, at * 1 (E.D.Va. Sept. 19,2002) ("[Petitioner's] failure to direct his attorney
to file an appeal for him does not give him a basis upon which he may come into federal court
after the statute of limitations has run.... [and] [a]ssuming, arguendo, that petitioner's attorney
had erroneously advised him in connectionwith his collateral appeal, that failure would be
insufficient to warrant equitable tolling of a statute of limitations.").
To the extent that Couvington claims entitlement to equitable tolling based on his lack of
legal knowledge and comprehension, he argues essentially that the limitations periodshould be
extended because he is a laymen at law. That argument has been uniformly rejected not only by
the Fourth Circuit, United States v. Sosa. 364 F.3d 507, 512 (4th Cir. 2004) ("[E]ven in the case
of an unrepresented prisoner, ignorance of the law is not a basisfor equitable tolling."), but also
by virtually every courtthat has considered it. See, e.g.. Cross-Bev v. Gammon. 322 F.3d 1012,
1015 (8th Cir. 2003) ("[E]ven in the case of an unrepresented prisoner alleging a lack of legal
knowledge or legal resources, equitable tolling has not been warranted."); United States v.
Rises. 314 F.3d 796,799 (5th Cir. 2002) ("[A] petitioner's own ignorance or mistakedoes not
warrant equitable tolling...."); Delanev v. Matesanz. 264 F.3d 7,15 (1stCir. 2001) (rejecting the
argument thata pro se prisoner's ignorance of the lawwarranted equitable tolling); Marsh v.
Soares. 223 F.3d 1217,1220 (10th Cir. 2000) (same).
Further, Couvingtonhas failed to
demonstrate that it "would be unconscionable to enforce the limitation period against [him or
that] gross injustice would resuh." Rouse. 339F.3d at 246. Accordingly, his claims are timebarred from federal consideration.
IV. Pending Motions
Also pending before the Court are two motions filed by petitioner. As discussed in this
Memorandum Opinion, petitioner has captioned his opposition to respondent's Motion to
Dismiss as a Motion to Apply to Respondent Motion to Dismiss. [Dkt. No. 15] The motion will
be granted to the extent that the arguments petitioner presents have beenconsidered and
Petitioner has also filed a Motion to Expand the Record in which he seeks to enlarge the
federal record with (1) a brief from his first statehabeas "to prove that [he filed it]... for the sole
purpose of obtaining a belated appeal"; (2)a copy of his ownaffidavit; and (3) a motion he filed
with the Fourth Circuit Court of Appeals seeking leave to file a second or successive habeas
corpus application pursuant to §2244. Petitioner's Motion will be denied. Theaffidavit he
wishes to add to the record is already on file withthis court. [Dkt. No, 5] It has beenassumed in
this Memorandum Opinion based upon petitioner's allegations thathis first state habeas corpus
action was filed to obtain a direct appeal, so there is no need to file a brieffrom that proceeding
to prove that fact. Lastly, the fact thatpetitioner's §2244 motion was denied because "review
revealed that [he] had not previously filed a §2254 that [was] adjudicated on the merits" [Dkt.
No. 15 at 6] is of no consequence to the adjudication of the instantpetition.
Forthe foregoing reasons, respondent's Motion to Dismiss will be granted, andthis
petition for habeas corpus reliefwill be dismissed with prejudice. An appropriate Order and
judgment shall issue.
day of Nl
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