Williams v. Clarke

Filing 18

FINAL ORDER. As the Court finds that the issue of timeliness was waived by Respondent, the Court does hereby ADOPT and APPROVE the findings and recommendations set forth in the 13 Report and Recommendation filed November 30, 2016 solely with regard s to the merits of Petitioner's habeas petition. It is, therefore, ORDERED that the Respondent's 8 Motion to Dismiss be GRANTED and that the 1 Petition be DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent. Signed by District Judge Mark S. Davis on 3/3/2017. Copies mailed 3/6/2017. (jmey, )

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division ALLEN DALE WILLIAMS, JR., #1430769, Petitioner, V. ACTION NO. 2;16cvl39 HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent. FINAL ORDER Before the Court is a Petition for a filed pursuant to 28 U.S.C. to Dismiss the Writ of Habeas Corpus § 2254 and the Respondent's Motion Petition. In the Petition, the attorney representing Petitioner alleges violations of his constitutional rights in relation to his convictions for second degree murder, burglary Court, and unlawful which resulted wounding, in the (55) in fifty-five York County years Circuit in prison with twenty-five {25} years suspended. The Petition Judge for of U.S.C. the 28 Rules District report of of § was referred a United and recommendation pursuant 636(b)(1)(B) the to United Virginia. and (C) District The Magistrate 2016, Magistrate to the provisions and Local States Recommendation filed November 30, States Court Civil Rule for Judge's recommends the 72 of Eastern Report dismissal and of the Petition Petitioner with prejudice.^ timely Recommendation. filed objections The Respondent, petitioner's objections, On December to 14, the Report the 2016, and in lieu of filing a response to filed a Notice to the Court that they were not going to respond to the Petitioner's objections unless directed to do so by the Court. January 18, 2017, The Court entered an Order on ordering the Respondent to file a response to Petitioner's objections within twenty (20) days from the date of entry of the Order. The Respondent Petitioner's Objections on February 7, The Court, upon a ^ novo filed his Response to 2017. review, having examined the record and the objections filed by Petitioner to the Report and Recommendation as well as the Response Objections filed by the Respondent, with regard to timeliness. year to judgment direct not Petitioner's Under file his became review. 28 U.S.C. federal final This and 'jurisdictional,'" (2010), and is the "statute Holland instead "an on petition time of had issue of Petitioner had 2244(d)(1), habeas one Florida, affirmative the from 2016. to state that Petitioner's 560 defense petition date for defense ' The Court corrects the scrivener's error on page 11 Recommendation the expired limitations v. Petitioner's makes the following finding objection § to was U.S. that of that seeking ... 631, the is 645 state the Report and filed on March 22, bears the burden of asserting." 705 (4th Cir. the issue of to Dismiss, not raise 2002) . Here, timeliness. ECF No. the the Gov. state did not See generally Br. 10; Resp., timeliness ECF No. issue, Governing Section 2254 Cases, sponte, Hill v. Braxton, If the state does Rule 4 of the Rules the court may raise timeliness sua though it is not required to do so. § 2254 Cases in U.S. initially raise in Support of Mot. 12. under 277 F.3d 701, Dist. Cts. 4 Id.; see also R. ("If i t plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, dismiss the petition petitioner."). sponte, McDonough, and the clerk to Should the court choose to raise opportunity 547 raised U.S. the 198, to Petitioner notice Petitioner objected limitation period, Respondent to the and respond 210-11 issue of Recommendation Court, direct notify the the issue sua the court should afford the petitioner with notice and a reasonable Judge and the judge must a to No. District filed a response stating that "respondent admits that timely," ECF No. 17, at 3 n.4. Here, Judge, ECF at to the Day v. the Magistrate in his No. 13, opportunity calculation and, issue. sua sponte reasonable 14, the (2006). timeliness the ECF to of to the [Petitioner's] giving object. one-year direction Petitioner's Report of the objections petition was The Court calculation of finds the no error applicable with time the period Magistrate for the Judge's statute limitations on Petitioner's federal habeas petition. of Petitioner advocates for use of the anniversary method of calculating the statute of counting, limitations. Under an anniversary method of "[w]hen a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the start of the limitations period." 225 F.3d 435, F.3d 97, No. 14, 439 103 at (4th Cir. (2d Cir. 4. Under 2000) 1998)); Hernandez v. Caldwell, (quoting Ross v. Artuz, 150 see also Pet.'s Objection 4, ECF this method of calculation. statute of limitations began to run on April 23, anniversary date of April 23, 2 013. While Petitioner's 2012, with an Petitioner agrees that the statute of limitations began to run on April 23, 2012, he argues that the day that he filed his state habeas petition, January habeas 11, one 2013, year should limitation Petitioner is correct, April 23, 2012 methodology for be counted period. ECF toward No. the 14, at federal 4. If the statute of limitations only ran from to January 10, Civil Procedure 6(a)(1) a not 2013. However, provides otherwise. counting days when the Federal Rule of That rule outlines period is stated days or a longer unit of time, such as a year: (A) exclude the day of the event that triggers the period; (B) count every day, . . . and in (C) Fed. include the last day of the period. R. Civ. P. 6(a)(1). Here, the . . . ninety day deadline for Petitioner to file a cert petition on direct appeal was April 23, 2012, at which time the statute of limitations his federal habeas petition began to run. Petitioner filed his state habeas for filing On January 11, petition, which 2013, tolled the statute of limitations on his federal habeas petition. Applying the Rule the day of from 6 counting methodology, the period be counted, April 24, January 11, 2012, 2013, 6(a)(1)(C). the which requires the statute of day after the equals 263 days, the Report and Recommendation. as last limitations triggering the last day of the period. This that Fed. event, R. Civ. ran to P. correctly calculated in The Respondent suggests that the leap day is not counted when i t occurs during the year between the triggering event and the anniversary date. by Petitioner, that is not the case here because the triggering event was April 23, 23, 2013, period. As acknowledged 2012, and had an anniversary date of April which did not include any leap day in the intervening Thus, calculation of the the Court observes timeliness of that the Magistrate Judge's Petitioner's petition was accurate. However, not set forth the one-year limitation on habeas petitions an inflexible rule requiring dismissal "does whenever its clock (2010) has run." Holland respondent, 560 U.S. Day, intelligently choose defense, a 631, 645 Instead, as the issue of timeliness can be waived by which then prohibits case upon this ground. that Florida, (internal quotations and citations omitted), an affirmative defense, State v. the court from dismissing the 547 U.S. at 218 n.ll to waive a statute ("[S]hould a of limitations district court would not be at liberty to disregard choice."); accord. Holland, 560 U.S. at 645 ("We have repeatedly stated that the enactment of time-limitation periods such as that in § 2244(d), without further elaboration, produces defenses that are nonjurisdictional and thus subject to waiver and 213 forfeiture." dissenting))). of 3. Day, 547 U.S. at (Scalia, J., Here, Respondent specifically waived the statute limitations admits that (citing affirmative [Petitioner's] defense by stating that petition was timely." "respondent ECF No. 17, at Because Respondent chose to waive the statute of limitations affirmative defense, that choice." D^, the Court is not 547 U.S. "at liberty to disregard at 218 n.ll. Thus, as the Court finds that the issue of timeliness was waived by Respondent, the Court and does hereby ADOPT and APPROVE the findings recommendations set forth in the Report and Recommendation filed November 30, Petitioner's 2016 habeas solely petition. with It regards is, to the therefore, merits ORDERED of that the Respondent's Motion to Dismiss, ECF No. 8, be GRANTED, that DENIED and DISMISSED the Petition, PREJUDICE. It is ECF No. 1, be further ORDERED that judgment be and WITH entered in favor of the Respondent. The Petitioner pursuant to this may Final appeal Order appeal with the Clerk of this 600 Granby Street, Norfolk, from by the filing court, judgment a written United States Virginia 23510, entered notice of Courthouse, within thirty (30) days from the date of entry of such judgment. The Petitioner has failed showing of the denial of a the Court pursuant declines to Procedure. Rule See to Miller-El demonstrate constitutional right, issue 22(b) to of v. any certificate the Federal Cockrell, a and therefore, of Rules 537 substantial appealability of U.S. Appellate 322, 335-36 (2003) . The Clerk shall mail or deliver a copy of this Final Order to counsel of record. It is so ORDERED. /s/ MARK UNITED Norfolk, VA March 3 , 2017 S. STATES DAVIS DISTRICT JUDGE

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