Coley v. Clarke

Filing 35

ORDER ADOPTING 33 Magistrate Judge's REPORT AND RECOMMENDATIONS. It is ORDERED that the record be supplemented with the factual findings set forth above and returned to the United States Court of Appeals for the Fourth Circuit for further consideration in connection with Mr. Coley's pending proceedings in that court. A copy of this order was mailed to petitioner on 10/9/15. Signed by District Judge Arenda L. Wright Allen on 10/8/15 and filed on 10/9/15. (tbro)

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

WILLIE COLEY,# 1041033
Petitioner,
V.

HAROLD CLARKE,

USDC CIVIL ACTION NO. 2:14CV120
USCA CASE NO. 15-6135

Director, Virginia Department
of Corrections,
Defendant.
ORDER

This case was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254
submitted by Petitioner Willie Coley ("Mr. Coley" or "Petitioner"), which was denied and dismissed
by Final Order on December 17, 2014. On January 23, 2015 the Court received and filed Mr.

Coley's Notice of Appeal. Mr. Coley maintains that he delivered the Notice of Appeal and a Motion

for Certificate of Appealability to the prison mailroom within the 30-day period for appeal. By
unpublished Opinion dated July 9, 2015 the United States Court of Appeals for the Fourth Circuit

remanded this case for the limited purpose of allowingthis Court to make factual findings as to the
date Petitioner delivered his Notice of Appeal to prison officials for filing.

The matter was referred to a United States Magistrate Judge, who directed the parties to

submit additional evidence to demonstrate the date Mr. Coley delivered the Notice of Appeal to

prison mailing officials. The Magistrate Judge received exhibits and memoranda from the parties
and thereafter filed a Report and Recommendation (ECF No. 33) on September 1, 2015
recommending that this Court supplement the record with the factual findings set out below.

The parties were advised of their right to file written objections to the findings and
recommendations made by the Magistrate Judge. On September 16,2015, the Court received and
filed Mr. Coley's Objections (ECF No. 34) to the Report and Recommendation. The Respondentdid
not file any objections and the time for filing has now expired.
After reviewing the Report and Recommendation, the record, and Mr. Coley's Objections,

this Court ADOPTS the findings and recommendations set forth in the Magistrate Judge's Report
and Recommendation filed September 1, 2015 and makes the following findings of fact:

FINDINGS OF FACT

Mr. Coley is incarcerated at the Lawrenceville Correctional Center in Lawrenceville,

Virginia. Lawrenceville Correctional Center maintains a system for monitoring and cataloging
outgoing legal mail. Inmates place mail in their housing units' prison mailbox, and the mail is then

broughtto the mail room. Mail room personnellog legalmail into a logbookand takethe mailto the
post office on the day that the mail room receives the mail.

On January 16,2015, Mr. Coleydated and mailedhis Notice of Appeal usingthe prison mail
system. Mr. Coley's later testimony that he mailed the Notice of Appeal and Motion for Certificate

for Appealability on January 15, 2015 is the only evidence of an earlier mailing date, but it is

contradicted by thesworn testimony of theprison mail room official, and significantly, by multiple
statements made by Mr. Coley himself

Unchallenged testimony establishes that due to the federal holiday on Monday, January 19,
2015 - Dr. Martin Luther King, Jr., Day - Mr. Coley could have placed his legal mail inhishousing
unitmailbox anytimefrom Friday, January 16,2015 through Monday, January 19,2015, resulting in

a logbook entry of Tuesday, Januaiy 20, 2015. This is consistent with Mr. Coley's certification provided in three places - that he mailed the document on January 16, 2015.
This Court ADOPTS the findings and recommendations set forth in the Magistrate Judge's
Report and Recommendation (ECF No. 33). It is ORDERED that the record be supplemented with
the factual findings set forth above and returned to the United States Court of Appeals for the Fourth
Circuit for further consideration in connection with Mr. Coley's pending proceedings in that court.

The Clerk shall mail a copy of this Order to Petitioner and provide an electronic copy to
counsel of record for Respondent.

Arenda L. Wright Allen

United States District Judge
Norfolk, Virginia
2015