Harrison v. Johnson

Filing 13

REPORT AND RECOMMENDATIONS re 7 MOTION to Dismiss filed by Gene M. Johnson, 1 Petition for Writ of Habeas Corpus, filed by Thomas Steven Harrison, Jr. Signed by Magistrate Judge Tommy E. Miller and filed on 8/5/09. Copy mailed 8/5/09.(lwoo)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

THOMAS STEVEN HARRISON, JR., #352171, Petitioner, v. ACTION NO. 2:09cvl8

GENE M. JOHNSON, Director of the
Virginia Department of Corrections,
Respondent.

UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This matter was initiated by petition for writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions

of 28 U.S.C. § 636(c)(l) and Rule 72 of the Rules of the United States District Court for the Eastern
District of Virginia.
I. STATEMENT OF THE CASE

Petitioner Thomas Steven Harrison, Jr., a Virginia inmate proceeding pro se, filed this

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his November 14,2005 convictions by the Circuit Court for the City of Virginia Beach for distribution of cocaine and
distribution of cocaine on school property. Harrison was sentenced to nine years and three years

respectively, and the sentences were to run concurrently. Harrison did not file a direct appeal of his
convictions.

Harrison filed a habeas petition in the Circuit Court for the City of Virginia Beach in May

2006, which was dismissed on August 1,2006. Harrison did not appeal the dismissal to the Supreme

Court of Virginia.

In October 2008, Harrison filed a petition for writ of habeas corpus in the

Supreme Court of Virginia, which was dismissed as successive and untimely on November 5,2008.
See Virginia Code §§ 8.01-654(A)(2) and 8.01-654(B)(2). Harrison, presently in the custody of the Virginia Department of Corrections at the

Baskerville Correctional Center in Baskerville, Virginia, filed this federal habeas petition on January
12,2009. Harrison asserts he is entitled to relief under 28 U.S.C. § 2254 because he was denied the

effective assistance of appellate counsel due to counsel's failure to perfect an appeal. On April 2, 2009, the Respondent filed a Rule 5 Answer and Motion to Dismiss. Harrison filed his response to the Motion to Dismiss on May 5, 2009. Accordingly, this matter is now ripe for adjudication.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Exhaustion

Harrison's ineffective assistance of counsel claim has been exhausted. Sec 28 U.S.C. §
2254(b) (2000). The exhaustion requirement is satisfied when the "essential legal theories and

factual allegations advanced in federal court... [are] the same as those advanced at least once to
the highest state court." Pruett v. Thompson. 771 F. Supp. 1428, 1436 (E.D.Va. 1991), affd. 996

F.2d 1560 (4th Cir. 1993). Exhaustion may be accomplished either on direct appeal or in postconviction proceedings. See O'Sullivan v. Boerckel. 526 U.S. 838, 844 (1999) (citing Brown v. Allen. 344 U.S. 443.447 (1953^: see also Skipper v. French. 130F.3d603,610n.4(4thCir. 1997).

Harrison presented his ineffective assistance of counsel claim to the Supreme Court of Virginia in
his state habeas petition. Therefore, the claim is exhausted.

B. Statute of Limitations

However, Harrison's claim is barred by the statute of limitations. The statute of limitations for actions under 28 U.S.C. § 2254 is provided in 28 U.S.C. § 2244(d)(l):
A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking
such review;....

Harrison failed to note an appeal of his November 14,2005 convictions within thirty days. See Rule
5A:6, Rules of the Supreme Court of Virginia. Therefore, his convictions became final on

December 14, 2005, and the one-year federal statute of limitations began to run. Even accounting for the tolling of the federal limitations period during the pendency of

Harrison's first state habeas petition, Harrison did not timely file his federal petition. Under 28 U.S.C. § 2244(d)(2), the statute of limitations is tolled during the time that a properly filed petition
for state collateral review is pending. Harrison executed a habeas petition on May 15,2006,1 which

was filed with the Circuit Court for the City of Virginia Beach, pausing the limitations clock after

five months had expired.2 While 28 U.S.C. § 2244(d)(2) pauses the clock during a pending state

1

Harrison signed the petition on May 1, 2006, and signed the In Forma Pauperis

Affidavit (on the same page) on May 15, with no year indicated. The Court will assume the petition was completed and given to prison officials to mail on May 15, 2006.

2

The prison mailbox rule established in Houston v. Lack. 487 U.S. 266 (1988), has

not explicitly been extended to applications for collateral review. The Fourth Circuit Court of Appeals has reserved that question. See United States v. Torres. 211 F.3d 836, 837 n.3 (4th Cir.
2000). However, the rationale behind the holding in Houston, that prisoners "file" an appeal when they deliver it to prison officials for mailing because a pro se prisoner has no choice but to entrust the forwarding of his documents to prison authorities whom he cannot control and who may have

incentive to delay, is an appropriate consideration in petitions for collateral review. For purposes

collateral review, it docs not reset the clock. See Harris. 209 F.3d at 327. On August 1, 2006, the Circuit Court for the City of Virginia Beach dismissed Harrison's petition and the clock began to

run again on the seven months left under the federal statute of limitations.3 Harrison had until
approximately March 1, 2007 to file his federal habeas petition. Harrison did not file this petition until January 12,2009. Therefore, Harrison's claims are barred by the statute of limitations unless
he is entitled to equitable tolling.
Equitable tolling of the statute of limitations is "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." Harris v. Hutchinson. 209 F.3d
325,330 (4th Cir. 2000). A petitioner seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo. 544 U.S. at 418 (citing Irwin v. Department of Veterans Affairs. 498 U.S. 89, 96 (1990)); see also Rouse v. Lee. 339 F.3d 238, 246 (4th Cir.
2003) (en bane).

Harrison asserts his counsel "failed to file an appeal after being instructed by petitioner and representatives of petitioner to file an appeal in a timely manner." (Pet. Resp. at 2.) Harrison further argues, "[i]t was not until petitioner's fiancee contacted counsel on March 11, 2008, that it was discovered that counsel had not filed an appeal." Id at 4. However, Harrison filed a petition for

of establishing a filing date for this petition, the court DEEMS the petition to have been filed on
May 15,2006.

3 Harrison's petition for writ of habeas corpus in the Supreme Court of Virginia did not toll
the federal statute of limitations. The petition was successive and untimely, therefore, not "properly filed." See Pace v. Diguglielmo. 544 U.S. 408,413 (2005). Further, the petition was not filed until October 20, 2008, over ten months after the federal statute of limitations expired.

writ of habeas corpus in the Circuit Court for the City of Virginia Beach in May 2006 in which he
represented that he had not appealed his convictions. (Rcsp. Ex. B at 2.) Further, he did not raise an ineffective assistance of counsel claim in the habeas petition filed in Circuit Court. Id. Instead,

Harrison waited until October 2008, when he filed his habeas petition in the Supreme Court of Virginia, to assert his counsel was ineffective for failing to file a direct appeal. (Resp. Ex. D, Memo,
at 2.)

Assuming Harrison's counsel was ineffective for not filing a direct appeal, Harrison's lack

of reasonable diligence in pursuing an appeal bars the application of equitable tolling to the federal

limitations period. See Valverde v. Stinson. 224 F.3d 129, 134 (2nd Cir. 2000). Petitioner must
"demonstrate a causal relationship between the extraordinary circumstances on which the 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
extraordinary circumstances." Id. Harrison was aware in 2006 when he filed his habeas petition in Circuit Court that his convictions had not been appealed. Despite this, Harrison waited over two years to file his petition in the Supreme Court of Virginia raising this issue. During those two years, the period for filing a timely petition for writ of habeas corpus in federal court expired. Moreover, Harrison did not use

reasonable diligence in failing to include his ineffective assistance of counsel claim when he filed
his first habeas petition in Circuit Court. See Warren v. Kelly. 207 F. Supp.2d 6,10 (E.D.N.Y. 2002)

(holding petitioner did not act with the diligence necessary to receive equitable tolling where appellate counsel failed to inform petitioner of the disposition of his appeal, and petitioner waited
over one year from the disposition to file a habeas petition). Therefore, the petition is barred by the statute of limitations, and the Court will not address the merits of the claims.
5

III. RECOMMENDATION

For the foregoing reasons, the Court recommends the petition for writ of habeas corpus be
DENIED as barred by the statute of limitations, and the respondent's motion to dismiss be
GRANTED.

Furthermore, Petitioner has failed to demonstrate "a substantial showing of the denial of a

constitutional right," therefore, it is recommended that the Court decline to issue any certificate of
appealability pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure. See Miller-El v.
Cockrcll. 537 U.S. 322 (2003).
IV. REVIEW PROCEDURE

By copy of this Report and Recommendation, the parties are notified that pursuant to 28
U.S.C.§636(b)(l)(C):

1. Any party may serve upon the other party and file with the Clerk written objections to the

foregoing findings and recommendations within ten (10) days from the date of mailing of this report
to the objecting party, sec 28 U.S.C. § 636(b)(l)(C) and Federal Rule of Civil Procedure 72(b), computed pursuant to Rule 6(a) of the Federal Rules of Civil Procedure, plus three (3) days permitted by Rule 6(d) of said rules. A party may respond to another parry's objections within ten
(10) days after being served with a copy thereof.

2. A district judge shall make a de novo determination of those portions of the report or
specified findings or recommendations to which objection is made.

The parties are further notified that failure to file timely objections to the findings and
recommendations set forth above will result in a waiver of right to appeal from a judgment of this

court based upon such findings and recommendations. Thomas v. Am. 474 U.S. 140 (1985); Carr v. Hutto. 737 F.2d 433 (4th Cir. 1984); United States v. Schronce. 727 F.2d 91 (4th Cir. 1984).

/s/

Tommy E. Miller

United States Magistrate Judge Norfolk, Virginia
August 5, 2009

CLERK'S MAILING CERTIFICATE

A copy of the foregoing Report and Recommendation was mailed this date to the

following:

Thomas Steven Harrison, Jr., #352171
Baskervillc Correctional Unit #4

4150 Hayes Mill Rd. Baskerville, VA 23915 Joanne Virginia Frye, Esq.
Office of Attorney General 900 East Main Street

Richmond, VA 23219 Fernando Galindo, Clerk

By

Clerk of the Court

August 5 ,2009