Claiborne v. Director of Department of Corrections
Filing
14
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/12/12. Copy sent: Yes(tdai, )
IN THE UNITED
FOR THE
STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Richmond Division
TYEL CLAIBORNE,
Petitioner,
v.
Civil Action No.
DIRECTOR
OF
3:11CV368
DEPARTMENT
OF CORRECTIONS,
Respondent.
MEMORANDUM OPINION
Tyel
se,
Claiborne,
brings
Petition")
the
City
this
a
Virginia
petition pursuant
challenging his
of
state
Richmond,
to
prisoner
28 U.S.C.
proceeding
§ 2254
pro
("§ 2254
convictions in the Circuit Court for
Virginia
("Circuit
Court").
Respondent
has moved to dismiss on the ground that the one-year statute of
limitations
governing
federal habeas petitions
Petition.
Claiborne
has
responded.
The
bars
matter
the
§ 2254
is ripe
for
disposition.
I.
PROCEDURAL HISTORY
On February 10, 2000,
Claiborne of
first
degree murder
commission of that crime.
2878, F-99-2874,
a jury in the Circuit Court convicted
and
use
of
a
firearm in the
Commonwealth v. Claiborne,
at 2 (Va. Cir. Ct. Feb. 10,
2000).
Nos.
F-99-
On the same
day, a judge convicted Claiborne of possession of a firearm by a
felon in relation to the
first degree murder.
Commonwealth v.
Claiborne,
May
4,
No.
F-99-2875,
2000,
the
at
1 (Va. Cir.
Circuit
Court
Ct.
Feb.
sentenced
10,
2000).
Claiborne
On
to
life
imprisonment plus eight years.
A.
On
("Court
Appeal After May 4, 2000 Sentencing
October
26,
2000,
the
Court
of
denied Claiborne's
of Appeals")
Appeals
appeal
of
Virginia
in part
stating
that the evidence adduced at trial was sufficient to support his
convictions.
Claiborne
v.
(Va.
Oct.
2000).
Ct.
App.
26,
Commonwealth,
The
No.
Court
1282-00-2,
of
Appeals
at
3
granted
Claiborne's appeal in part and remanded Claiborne's case back to
the
Circuit
conviction
Court
due
to
for
a
resentencing
jury
on
instruction
Claiborne's
error.
murder
Claiborne
v.
Commonwealth, No. 1282-00-2, at 1 {Va. Ct. App. Jan. 22, 2001).
B.
On
Resentencing in the Circuit Court
July
Claiborne
to
23,
2001,
life
the
imprisonment
Commonwealth v. Claiborne, No.
2001) .
Circuit
Claiborne
failed
for
Court
to
murder
the
F-99-2878
appeal
again
sentenced
conviction.
(Va. Cir. Ct. July 23,
the
July
23,
2001
resentencing order.
C.
Counsel's Failure to Appeal Resentencing
Claiborne
Gammino,
indicating
submits
dated
that
two
September
the
Court
letters
13,
of
2001
from his
and
Appeals
counsel,
September
of
Virginia
David
18,
M.
2001,
rejected
Claiborne's
appeal
of
the
July
23,
2001
resentencing
because
Gammino failed to file a timely petition for appeal.1
(Pet'r's
Resp.
that
Exs.
1,
2.)
In
these
letters,
Gammino
states
he
enclosed with each letter a petition for a writ of habeas corpus
completed by
Habeas").
on
Claiborne's
behalf
(the
"Pre-completed
Gammino encourages Claiborne to review and sign the
petition,
Gammino
Gammino
then
asks
completed,
mail
it
back
Claiborne
and I
to
to
[(Gammino)]
Gammino.
"[s]end
this
(Id.
Exs.
1,
form
back
to
will forward it to the Court.
2.)
me
Once
I do this, the Court will appoint another attorney to file your
appeal with the Virginia Supreme Court."
nothing
before
Gammino
filed
the
any
Court
habeas
indicates
petition
on
that
(Id. Ex. 2.)
either
However,
Claiborne
Claiborne's
behalf
or
until
July 20, 2003.
D.
Claiborne's State Court Habeas Petitions
On July 20,
habeas
corpus
August
12,
2003, Claiborne filed a petition for a writ of
in
2003,
the
Circuit
Court
("First
Petition").
the Circuit Court dismissed the
First
On
Petition
because Claiborne failed to submit either a filing fee or an in
forma
pauperis
affidavit.
(Va. Cir. Ct. Aug.
Claiborne
v.
True,
No.
CL03-R-1684
12, 2003).
1 These letters are addressed to Claiborne at "Red Onion
State Prison."
(Pet'r's Exs.
1, 2.)
3
On October
21,
2008,
Claiborne
submitted a petition
writ of habeas corpus to the Supreme Court of Virginia
Petition").
rejected
On January 29,
the
Second
2009,
Petition
as
for a
("Second
the Supreme Court of Virginia
untimely
pursuant
to
Virginia
Code § 8.01-654(A)(2).2
Claiborne v. Dir. of the Dep't of Corr.,
No.
2009).
082139
On
or
petition
("Third
rejected
(Va.
Jan.
about
for
a
29,
April
writ
Third
Ct.
Apr.
27,
Claiborne
habeas
corpus
On
April
27,
Petition
Code § 8.01-654(A)(2).
Cir.
2010,
of
Petition").
the
16,
as
the
Circuit
Court
2010,
the
Circuit
Court
pursuant
to
untimely
Nothing
another
to
Claiborne v. Johnson,
2010).
submitted
before
No.
the
Virginia
CL10-1788
Court
indicates
that Claiborne appealed this decision.
2 This section states, in pertinent part, that:
A
habeas
corpus
petition
conviction or sentence
years
from
the
date
attacking
a
criminal
. . . shall be filed within two
of
final
judgment
in
the
trial
court or within one year from either final disposition
of the direct appeal in state court or the time for
filing such appeal has expired, whichever is later.
Va. Code Ann.
§ 8.01-654(A)(2)
(West 2011).
4
(Va.
E.
Claiborne's
On
this
May
27,
Court.
Federal
2011,
(§
Habeas
Claiborne
2254
Pet.
Petition
filed
15. )3
his
In
§
the
2254
§
Petition
2254
in
Petition,
Claiborne makes the following claims for relief:
Claim One
Counsel
deficiently
failed
investigate plausible
evidence,
of
defense,
witnesses,
Commonwealth's
to
lines
and
the
case.
Claim Two
Counsel deficiently failed
timely notice of appeal.
to
file
a
Claim Three
The
Commonwealth's
Attorney
denied
Claiborne due process of law by failing
to disclose exculpatory evidence prior
to trial.
(§ 2254 Pet.
6-9.)
II.
A.
ANALYSIS
Statute of Limitations
Respondent contends that the federal statute of limitations
bars
Claiborne's
Effective
Death
claims.
Section
Penalty Act
101
("AEDPA")
of
the
Antiterrorism
amended 28
U.S.C.
and
§ 2244
to establish a one-year period of limitation for the filing of a
petition for a writ of habeas
pursuant
U.S.C.
to the
§ 2244(d)
corpus by a person in custody
judgment of a state court.
Specifically,
28
now reads:
3 The Court deems the petition filed on the date Claiborne
swears he placed
Houston v. Lack,
the
petition
487 U.S.
266,
in the prison
276 (1988).
5
mailing
system.
1.
A 1-year period of limitation 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
(A)
latest
of—
the date on which the judgment
final
by
the
conclusion
of
review or the expiration
for seeking such review;
(B)
of
became
direct
the
time
the date
filing an
on which the impediment to
application created by State
action
violation
or
in
laws
of
the
of
the
United
Constitution
States
is
removed, if the applicant was prevented
from filing by such State action;
(C)
the
date
on
which
the
constitutional
right asserted was initially recognized
by the Supreme Court, if the right has
been newly recognized by the Supreme
Court and made retroactively applicable
to cases on collateral review;
(D)
2.
or
the date on which the factual predicate
of the claim or claims presented could
have
been
discovered
through
the
exercise of due diligence.
The
time
during
which
a
properly
filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward
any
period
of
limitation
under
this
subsection.
28 U.S.C.
B.
"The
§ 2244(d).
Commencement of the Statute of Limitations
one-year
statute
of
limitations
begins
to
run
on
a
habeas petition that challenges a resentencing judgment on the
date
the
v.
that
the
resentencing
date that the original
Rose,
Crosby,
436
341
F.3d
Claiborne's
1209
became
final,
1246
(6th
Cir.
in
2000)).
the
704
(4th
Cir.
(citing
2003);
Hepburn v.
thirty days after
Circuit
2002)
Linscott
Hence,
(11th Cir.
(11th Cir.
than
2006)
Court,
for purposes of § 2244(d) (1) (A) .
701,
rather
conviction became final."
591
re-sentencing
became final
F.3d
587,
F.3d 1240,
215 F.3d 1208,
277
judgment
("[T]he
Walker
v.
Moore,
his
judgment
Hill v.
Braxton,
one-year
limitation
period begins running when direct review of the state conviction
is
completed
expired
Ct.
R.
or
when
. . . ."
5A:6(a)
re-sentencing
the
time
for
(citing 28 U.S.C.
(2001).4
order
seeking
direct
review
§ 2244(d)(1)(A)));
Va.
has
Sup.
The Circuit Court entered Claiborne's
on
July
23,
2001.
conviction became final on Wednesday,
date to file his notice of appeal.
Thus,
August 22,
Claiborne's
2001,
the last
Claiborne then had one year,
4 In 2001, Rule 5A:6(a) read in relevant part:
Timeliness. — No appeal shall be allowed unless,
within 30 days after entry of final judgment or other
appealable
order
or
decree,
counsel
files
with
the
clerk of the trial court a notice of appeal, and at
the same time mails or delivers a copy of such notice
to all opposing counsel and the clerk of the Court of
Appeals.
Va.
Sup.
Ct.
R.
5A:6(a)
(Michie 2001).
failed to file a notice of appeal,
Thus,
because Claiborne
the time for seeking direct
review expired thirty days after the Circuit Court entered final
judgment.
7
or
until Thursday,
August 22,
2002,
to
file any federal habeas
challenge to his conviction or sentence.
Claiborne did not file
the § 2254 Petition until May 27, 2011.
Accordingly,
the § 2254
Petition is untimely.
C.
Statutory Tolling
Claiborne did not file any of his three state court habeas
petitions prior to the expiration of the AEDPA one-year statute
of
limitations.
AEDPA
none
statute
of
Thus,
of
none
of these
limitations.
petitions
Moreover,
as
could toll
explained
the
below,
these three petitions were "properly filed" within the
meaning of 28 U.S.C.
§ 2244(d)(2).
Hence,
timely submitted these state court
even if Claiborne had
habeas petitions,
they were
not eligible for statutory tolling.
To
toll
(1) properly
the
statute
filed
(2)
of
limitations
post-conviction
review of (3) the pertinent judgment.
an
action
or
must
other
be
a
collateral
28 U.S.C. § 2244(d)(2).
[A]n application is 'properly filed' when its delivery
and acceptance are in compliance with the applicable
laws and rules governing filings.
These usually
prescribe, for example, the form of the document, the
time limits upon its delivery, the court and office in
which it must be lodged, and the requisite filing fee.
Artuz
v.
omitted)
Bennett,
531
(citing cases).
U.S.
4,
8
(2000)
(internal
footnote
Claiborne failed to properly file the
First Petition because he neither paid the proper filing fee nor
properly requested leave to proceed in_ forma pauperis.
v. Kelly,
29,
3:10cv871,
2011)
942,
(citing Artuz,
944-45
KD-B,
2011 WL 5975242,
(8th Cir.
2009
WL
531 U.S.
2008);
3414280,
at
(E.D.
*4
Va.
November
Burt,
at 8; Runyan v.
Phillips v.
at
*3
521 F.3d
No.
06-00816-
Culliver,
(S.D.
Ala.
Chilton
Oct.
16,
2009).
Claiborne failed to properly file the Second and Third Petitions
because they were untimely filed.
U.S.
408,
qualify
Thus,
417
for
the
(2005).
statutory
statute
See Pace v.
These
tolling
of
petitions,
of
the
limitations
therefore,
statute
ran
DiGuglielmo,
for
of
D.
Court
§ 2244(d)(1)(D)
must
limitations
predicate
discovered
may
of
next
entitles
limitations
3564
days
before
Accordingly,
Petition.
Claiborne
period.
As
commence
the
through
claim
the
consider
on
or
to
belated
pertinent
"the
claims
exercise
of
whether
date
here,
on
due
belated commencement
petitioners
they
could
when
not
have
of
the
of
statute
the
could
diligence."
This
28 U.S.C.
commencement
which
presented
§ 2244(d)(1)(D).
earlier.
not
Belated Commencement
The
the
do
limitations.
Claiborne filed the § 2254 Petition in this Court.
the statute of limitations bars the § 2254
544
factual
have
been
28 U.S.C.
provision protects
brought
their
claims
Claiborne argues
the
limitations
pursue
that he merits
period
a direct
because
appeal
§ 2244(d) (1) (D) ,
the
petitioner
discovered,
the
his
counsel
from Claiborne's
limitation
knows,
a belated commencement
or
period
through
factual
due
predicate
for
failed
sentencing.5
begins
to
3:07CV266,
(citing
Owens
2008
Schlueter
v.
Boyd,
WL
v.
235
652111,
a
F.3d
(E.D.
F.3d
69,
359
356,
*2
(7th
Cir.
timely
"Under
when
could
potential
384
Varner,
at
run
diligence
the
have
Va.
74
claim,
not
McKinney v.
when he recognizes their legal significance."
No.
to
of
Ray,
Mar.
(3d
11,
Cir.
2000)).
2008)
2004);
Claiborne
knew of counsel's failure to perfect his appeal as of September
13,
(See
2001,
the
Pet'r's
explanation,
date
of
counsel's
Resp.
however,
Ex.
as
1.)
to
after the receipt of this
first
letter
Claiborne
why
it
letter to
took
him
file the
stating
has
much.
offered
almost
First
as
two
no
years
Petition in
the Circuit Court and nearly eight years after the rejection of
the First Petition to file the § 2254 Petition in this Court.
Nevertheless,
the
Court
acknowledges
that
Claiborne's
counsel failed to file a timely direct appeal through no fault
5 Claiborne's arguments lack any assertion that he returned
the Pre-completed Habeas to Gammino and Gammino failed to timely
file
it.
While
such facts might
influence this Court's
analysis, nothing indicates either that Claiborne returned the
Pre-completed Habeas to Gammino or that Claiborne attempted to
file the Pre-completed Habeas himself prior to filing the First
Petition.
Also, the record clearly establishes that the First
Petition and the Pre-completed Habeas are not the same document.
10
of
Claiborne's.
limitations
after
the
U.S.C.
The
commenced
date
as
which
§ 2244(d)(1)
will
of
therefore
September
appears
on
required
Petition by Monday,
so.
Court
even
30,
Claiborne
with
the
statute
sixteen
letter.
to
2002.
the
2001,
Gammino's
September 30,
Accordingly,
deem
file
days
Thus,
the
of
§
28
2254
Claiborne failed to do
benefit
of
a
belated
commencement, the § 2254 Petition is untimely.
E.
Equitable Tolling
Petitions
equitable
2560
tolling.
(2010).
'petitioner'
'(1)
pursuant
that
(2) that
See
The
is
he
to
U.S.C.
Holland
Supreme
v.
§
Florida,
Court
has
has
been
pursuing
his
Id.
at
2562
are
130
"made
rights
some extraordinary circumstance
at 418).
2254
'entitled to equitable tolling'
prevented timely filing."
burden
28
subject
S.
Ct.
clear
to
2549,
that
a
only if he shows
diligently,
stood in his way'
(quoting Pace,
544
and
and
U.S.
An inmate asserting equitable tolling "'bears a strong
to
show
specific
facts'"
which
demonstrate
that
he
fulfills both elements of the test.
Yang v. Archuleta,
525 F.3d
925,
Brown
512
1304,
928
1307
(10th
Cir.
(11th Cir.
2008)
(quoting
v.
Barrow,
F.3d
2008)).
Claiborne fails to demonstrate that he pursued his rights
diligently or that some extraordinary circumstance prevented him
from filing in a timely manner.
11
Claiborne does not attempt to
explain any other reason why he
tolling.
Accordingly,
tolling.
should be entitled to equitable
Claiborne
is
not
entitled
to
equitable
Because Claiborne fails to demonstrate any meritorious
grounds
for
equitable
tolling
of
the
limitation
period,
the
§ 2254 Petition will be denied as untimely.
III.
For
the
foregoing
CONCLUSION
reasons,
Respondent's
(Docket No. 4) will be granted.
under
28
U.S.C.
§
2254
will
Motion
to
Dismiss
Claiborne's petition for relief
be
denied.
The
action
will
be
dismissed.
An appeal may not be taken from the final order in a § 2254
proceeding unless a judge issues a certificate of appealability
("COA").
28
U.S.C.
§
2253(c)(1)(A).
A
COA
will
not
issue
unless a prisoner makes "a substantial showing of the denial of
a
constitutional
requirement
is
debate whether
right."
satisfied
(or,
should
have
been
issues
presented
proceed further.'"
28
only
U.S.C.
when
for that matter,
resolved
were
in
'adequate
Slack v.
(quoting Barefoot v. Estelle,
law or evidence suggests
a
§ 2253(c)(2).
"reasonable
to
McDaniel,
jurists
agree that)
different
manner
deserve
could
the petition
or
that
encouragement
the
to
529 U.S. 473, 484 (2000)
463 U.S. 880, 893 n.4
that Claiborne
12
This
(1983)).
is entitled to
No
further
consideration
will
in
this
matter.
A
certificate
of
appealability
therefore be denied.
The Clerk of
the Court
is directed to
send a copy of this
Memorandum Opinion to Claiborne and counsel for Respondent.
An appropriate Order shall issue.
/s/
fltC
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: 7^ck/a,jL^
13
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