Austin v. Johnson

Filing 23

FINAL MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS for 19 Motion to Dismiss filed by Gene M. Johnson, 21 Report and Recommendations, ordering that the petition be denied and dismissed as the claims are barred by the statute of limitations. Further ordering that judgment be entered in favor of respondent, noting appeal procedures and declining to issue a certificate of appealability. Signed by District Judge Rebecca Beach Smith and filed on 2/2/09. Copy mailed: 2/2/09(jcow, )

UNITED STATES

DISTRICT COURT

FILED
FEB -2 2GOD
CLERK, U.S. DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

BILLY AUSTIN,

#333347,

NORFOLK. VA

Petitioner,
v.

ACTION NO. JOHNSON, Director of the

2:08cvl35

GENE M.

Virginia Department of Corrections,
Respondent.

FINAL MEMORANDUM ORDER

This

matter was

initiated by petition § 2254.

for

a

writ

of

habeas

corpus under 28 U.S.C.
federal

The petition alleges violation of
conviction on March 13,

rights pertaining to Petitioner's

2003,

in

the

Circuit

Court

of

Accomack

County,

Virginia,

for

aggravated sexual battery, serve a total of ten

as a result of which he was sentenced to years in prison, six (6) months

(10)

suspended.

The matter was
pursuant to

referred to a United States Magistrate Judge
of 28 U.S.C. § 636(b)(l){B) and (C) ,

the provisions

Rule 72(b)
the Rules

of the Federal Rules of Civil
of the United States

Procedure and Rule 72 of
Court for the Eastern

District

District of Virginia for report and recommendation.

The report of

the

Magistrate
of

Judge,

filed

on

December

16,

2008,

recommended

dismissal

the petition.

By copy of

the report,

each party was

advised of his right to file written objections to the findings and

recommendations

made

by

the

magistrate

judge.

On

December

31,

2008,

the court received Petitioner's Response & Objections To The

Magistrate Judge's Report and Recommendation.
no response from Respondent.

The court received

Petitioner

objects

to

the Magistrate

Judge's

Report

on

the

following ground: if he had,
by

Petitioner did not receive a Roseboro Notice and have responded
statute

he

would

to
of

Respondent's
limitations

Motion
should

to
be

Dismiss

arguing

that

the

equitably statute because was

tolled.

Petitioner period

argues should

in

his

Objections

that

the here he

of (1)

limitations he is

be

equitably

tolled

"uneducated and practically illiterate"; local and regional jails,

(2)

incarcerated at

which did not have

law libraries, during the statute of limitations period; and (3) he is actually innocent of the charges of which he was convicted.

Petitioner's Objections

at 3-5.

Regarding whether Petitioner received a Roseboro Notice with
the Respondent's Motion To Dismiss, the court notes that a Roseboro

Notice is in the docket as Document No.
Certificate of
sent the

18.

The notice includes a
indicating
the

Service,
to

signed by Respondent,
Additionally,

that he
of a

notice

Petitioner.

purpose

Roseboro Notice is to give the pro se plaintiff fair notice that a

summary disposition of his
responsive pleadings.

case is possible and that he may file
Garrison, 52 8 F.2d 309 (4th

See Roseboro v.

Cir. 1975).

Even assuming that Respondent did not serve Petitioner

with such notice,

the court finds

that

the Petitioner had fair

notice that Respondent filed a Motion to Dismiss and that he could file responsive pleadings. Petitioner
in his

admits

that

he

received

Respondent's Motion

to Dismiss

Objections.

Petitioner's

Objections

at

1-2.

In

this

case,

Respondent

filed a previous,
on

erroneous Motion to Dismiss,

together with a Roseboro Notice,

May

9,

2008.

Petitioner

responded

to

that

erroneous

Motion To

Dismiss

and

noted

in

his

response

his

right

to

do

so

under

Roseboro.1

Therefore, when Respondent filed the corrected Motion

to Dismiss, on August 25, 2008, Petitioner had prior notice that he
could respond to the motion. In any event, the court has

considered Petitioner's claim that equitable tolling should apply,
as set forth below.

Petitioner has asserted that the statute of limitations should not bar his petition because he had no library access during his
state habeas petitions because he was in regional and local jail.

Petitioner's Objections at 4. period is appropriate only

Equitable tolling of the limitation when
(2)

a

petitioner

"presents

(1)

extraordinary circumstances,

beyond his control or external to

his

own

conduct,
Lee.

(3)

that

prevented
246

him

from
2003).

filing

on

time."

Rouse v.

339 F.3d 238,

(4th Cir.

n[A]ny resort to

equity must be reserved for

those rare

instances where

- due

to

original

1 The court, at the time, noted Petitioner's objections to the
Motion To Dismiss and Ordered Respondent to file a

corrected Motion to Dismiss.

circumstances

external

to the party's own conduct -

it would be

unconscionable to enforce the limitation period against the party

and gross injustices would result."
325, 4 89, 330 4 94 (4th Cir. (E.D. 2000);

Harris v. Hutchinson. 209 F.3d
184 F. Supp. 2d has

Little v. United States. Moreover, the

Va.

2002).

Supreme

Court

considered the issue of equitable tolling for denial of access to
the prison library and has held that denial of access should be

evaluated to determine whether the prisoner had a reasonable period in which to access the law library. 200-01 Evans v. Chavis, 546 U.S. 189, 74

(2006)(emphasis added in text);
587, 589 (6th .Cir. 2003)

see Maclin v.

Robinson.

Fed. Appx.

{denying equitable tolling to

a prisoner whose access to the law library was limited to 1.5 hours per week); Baker v. Norris. 321 F.3d 769, 771-72 (8th Cir. 2003)

(denying equitable tolling to a prisoner whose library access was
limited to two (2) hours at a time).

Petitioner's law library while

claims his not

in this

case of denial petitions

of access were

to

the are file

state

habeas

pending able to

inherently suspect,
state habeas

only because
while he

Petitioner was
lacked

petitions

allegedly

access

to

a

library,
statute

but
of

also because

those

state
See 28

habeas
U.S.C.

petitions
§

toll

the
The

limitations period.

2244(d)(2).

tolling

remains
the

pending

throughout

the
lower to

state
state a

review
court's

process,
decision court.

including and the

time period between a of a notice of

filing

appeal

higher

state

Carev v.

Saffold.

536 U.S.

214,

220-21

(2002);

Rouse v.

Lee.

339

F.3d 238, 243-44 {4th Cir. 2003) (a state post-conviction proceeding

for

§

2244(d)(2)
"from

tolling
initial

purposes
filing

encompasses
the trial

all

state-court
to final

proceedings

[in

court]

disposition by the highest state court."
186 F.3d 557, 561 (4th Cir. 1999))).

(quoting Tavlor v.

Lee.

Further,

to the extent that

Petitioner argues he should be excused for his unfamiliarity with
the legal system and his pro se status, such an argument is equally
unavailing. 2004) See United States v. Sosa. 364 F.3d 507, 512 (4th Cir.

(pro sje petitioner's ignorance and misconceptions about the

operation of the statute of limitations do not justify equitable

tolling because they are not extraordinary circumstances beyond his
control).

Moreover,

delays

due

to

seeking

legal

advice,

and

related

allegations of
been held not
warrant the

inadequate prison law libraries have consistently
to constitute the "extraordinary circumstances"
tolling. Bilodeau

to
v.

application

of

equitable

Angel one.

39

F.

Supp.

2d

652,

659

(E.D.

Va.

1999)

(refusing

to

excuse defendant's delay in order to seek legal assistance because

"[defendant]

has

no

right

to

legal

representation

in

habeas

proceedings"); Pavne v. Rushton. 2006 WL 694744, at *5 {D.S.C. Mar.
26,
late

2006)

(denying defendant's request
because law library's

for equitable tolling for
to provide revised

filing

failure

federal habeas filing deadlines did not "constitute 'extraordinary

circumstances'").

The court also notes that Petitioner contends he is entitled to equitable tolling of the statute of limitations to excuse his failure to timely file his federal habeas petition because he is
actually innocent of the charges.
In support of this assertion,

Petitioner's Objections at 4.
asserts that he "has

Petitioner

presented evidence in his petition reflecting that the complaining

witness has since made similar false accusations in the past, and
subsequent to his trial," and he cites Schlup v. Delo. 513 U.S. 298
(1995), for the proposition that actual
barrier such as filing

innocence can overcome a
outside the statute of

procedural

limitations

period.

Petitioner's

Objections

at

4.

However,

Petitioner's reliance on Schlup as support for that proposition is misplaced. Schlup involved a state habeas petitioner facing the whose claims were procedurally defaulted in state

death penalty,
court,

and who had filed a second federal habeas petition seeking

to

raise

a

claim

of

actual

innocence

to

avoid

the

court's

application of the procedural bar to consideration of the merits of his claims. Schlup. 513 U.S. Also, at 852. By contrast, this is not a

death penalty case.

Schlup did not involve application of

the federal statute of limitations for seeking habeas relief as is the case here.
"actual

In fact,

the Supreme Court has never held that an
to the AEDPA's one-year statute of

innocence"

exception

limitations

applies

so

as

to

excuse

a

petitioner's

failure

to

timely
Jones,

file his
395 F.3d

federal
577,

habeas petition.
589, 597 (6th Cir.

See,

e.g..

Souter v.

2005)

{recognizing

disagreement among the courts of appeals but noting the majority of
the circuits allowing for equitable tolling based on actual

innocence require the petitioner to diligently pursue his federal
habeas claims); Bozman v. Kershaw Correctional Institution. 2006 WL
516734, *2 {D.S.C. Mar. 1, 2006) (adopting the reasoning of the

Fifth

and

Eighth
is an

Circuits,

finding

"that

a
to

claim
warrant a

of

actual

innocence tolling

insufficient of

circumstance

equitably that a

the

statute

limitations

without

showing

petitioner has discovered new facts that could not have been found

with reasonable diligence before the time for filing had ended.")
Further, the Fourth Circuit Court of Appeals continues to apply the

"extraordinary circumstances" test set forth in Rouse, 246, in which equitable when a tolling of the limitation (1)

339 F.3d at period is

appropriate

only

petitioner

"presents

extraordinary

circumstances,
conduct,
Bozman.

(2)

beyond

his

control

or

external

to

his

own

(3)
2006

that prevented him from filing on time."
WL 516734, at *2.

See also.

In the instant case,

Petitioner has failed to timely file his

petition for a writ of habeas

corpus in this

court.

The federal

petition was

due

to be

filed by October

1,

2007

(including

the

applicable tolling of
entitled),

the statute of limitations to which he was

but the petition was not executed until more than five

(5) months later,

on March 17,

2008.

Indeed,

Petitioner fails to

offer any reason for the dilatory filing of the federal petition that would satisfy any of the three elements set forth in Rouse.

"Under long-established principles, petitioner's lack of diligence
[in pursuing his rights] DiGualielmo. 544 U.S. precludes equity's operation." 418 and n.8 (2005) Pace v.

408,

(citations omitted)

(assuming without deciding that the AEDPA's statute of limitations
can be equitably tolled and establishing a two-part test for

equitable

tolling

in which

the petitioner

"bears

the burden of

establishing two elements: diligently, and (2) his way").

(1) that he has been pursuing his rights

that some extraordinary circumstances stood in Petitioner does not adequately support his

Ultimately,

claim of "actual innocence," and there is nothing in the record to
demonstrate external to extraordinary his own circumstances that would beyond have his control or

conduct
court.

prevented him

from

filing on time in this

Therefore,

the court, having reviewed the record and examined

the

objections
and

filed

by

Petitioner
de novo

to

the

Magistrate
respect

Judge's
to the

report,

having

made

findings

with

portions objected to,
and recommendations

does hereby ADOPT AND APPROVE the findings
forth in the report of the United States

set

Magistrate Judge filed on December 16,

2008; and it is,

therefore,

ORDERED that the petition be DENIED AND DISMISSED as the claims are

barred by the statute of limitations.

It is

further ORDERED that

judgment be entered in favor of Respondent.

Petitioner may appeal
this final

from the judgment entered pursuant to

order by filing a written notice of appeal with the United States Courthouse,
within thirty (30) Petitioner has

Clerk of this court,

600 Granby Street,

Norfolk, Virginia 23510, entry of such judgment.

days from the date of

failed to demonstrate "a

substantial Therefore,
of

showing

of

the

denial

of

a

constitutional

right."

the Court, pursuant to Rule 22(b)
Procedure, declines to

of the Federal Rules
a certificate
U.S. 322,

Appellate

issue
537

of

appealability.
(2003) .

See Miller-El v.

Cockrell.

335-36

The Clerk shall mail a copy of this Final Memorandum Order to

Petitioner and to counsel of record for Respondent.

UNITED STATES DTSmifcT JUDGE
Norfolk, Virginia
, 2009