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, )
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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