Piggott v. Kelly
Filing
16
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/17/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CHRISTOPHER RYAN PIGGOTT,
Petitioner,
v.
Civil Action No.
3:11CV432
LORETTA KELLY,
Respondent.
MEMORANDUM OPINION
Christopher
proceeding pro
§ 2254
City,
se,
("§ 2254
Circuit Court
Ryan
brings
Petition")
of the
Virginia
Piggott,
this
a
Virginia
state
petition pursuant
challenging
his
to
prisoner
28 U.S.C.
convictions
in
the
City of Williamsburg and County of James
("Circuit Court").
Respondent moves
to dismiss
on the ground that the one-year statute of limitations governing
federal habeas petitions bars the § 2254 Petition.
responded.
Piggott has
The matter is ripe for disposition.
I.
PROCEDURAL
HISTORY
The Circuit Court convicted Piggott of one count of hit and
run,
one count of attempted capital murder of a police officer,
one count of assault and battery of a police officer,
of eluding police,
convicted felon.
Cir.
Ct.
July 16,
one count
and one count of possession of a firearm by a
Commonwealth v.
2007).
On
July
Piggott,
No. 15372,
16, 2007,
the
at 1 {Va.
Circuit Court
sentenced Piggott to an active term of twenty-seven years of
imprisonment.
Id.
Piggott appealed his convictions for hit and run, attempted
capital
murder
of
a
law
enforcement
officer,
and
assault
and
battery of a law enforcement officer to the Court of Appeals of
Virginia.
Piggott v. Commonwealth, No. 1797-07-1, at 1 (Va. Ct.
App. Sept. 23, 2008).x
The Court of Appeals of Virginia affirmed
Piggott's conviction for attempted capital murder of a police
officer and "denied
those
parts
of
[his]
the
convictions of hit
enforcement
petition for appeal with regard to
judgment
pertaining
and run and assault
officer."
Id.
(internal
to
[Piggott's]
and battery of a law
citations
omitted).
On
April 1, 2009, the Supreme Court of Virginia refused Piggott's
petition for appeal.
(Va. Apr.
A.
Piggott v. Commonwealth, No. 082008, at 1
1, 2009).
Piggott's State Habeas Petitions
On May 3, 2010, the Circuit Court received a petition for a
writ
of habeas
September
28,
corpus
2010,
("First
the
Petition")
Circuit
Court
from Piggott.
dismissed
the
On
First
Petition as untimely pursuant to section § 8.01-654(A)(2) of the
and
Piggott did not appeal his convictions for eluding police
possession of a firearm by a convicted felon.
Piggott,
No.
1797-07-1,
at 1.
Virginia Code.2
(Va.
Cir.
Ct.
256,
258 (Va.
Virginia
Piggott v.
Sept.
2010)
2002)).
refused
Piggott
28,
Kelly, Warden, No. 10-52600, at 3
(citing Haas v.
On May 19,
Piggott's
2011,
subsequent
Lee, 560 S.E.2d
the Supreme Court of
petition
for
appeal.
v. Kelly, Warden, No. 102407, at 1 (Va. May 19, 2011).
On July 13, 2011, Piggott submitted a second petition for a
writ of habeas corpus to the Circuit Court ("Second Petition").
On
September
2011,
the
Circuit
inter
Petition,
8,
alia,
as
untimely
§ 8.01-654(A)(2).
Piggott v.
(Va. Cir. Ct. Sept.
Court
dismissed
pursuant
to
the
Second
Virginia
Code
8, 2011).
B.
Warden,
No. 11-857,
at 3-4
Piggott's Federal Habeas Petition
On June 25, 2011,
Court.3
Kelly,
Piggott filed his § 2254
(§ 2254 Pet. 15.)
Petition in this
In the § 2254 Petition, Piggott makes
the following claim for relief:
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 2010).
3 The Court deems the petition filed on the date Piggott
swears he placed the petition in the prison mailing system.
Houston v. Lack,
487 U.S.
266,
276 (1988).
See
Ineffective assistance of counsel violated [Piggott's]
rights under the Sixth [4] and Fourteenth[5] Amendments,
based on
pretrial
counsel's
factual
preparation
to
failure to conduct an adequate
and
legal
investigation
in
file
[a]
motion
for mental
evaluation
on [the] crucial issue of [Piggott's] sanity at the
time of the crime and [his] competency to stand trial.
§ 2254 Pet. 4 (capitalization corrected).)
II.
A.
ANALYSIS
Statute Of Limitations
Respondent contends that the federal statute of limitations
bars
Piggott's
Effective
claim.
Section
Death 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
corpus by a person in custody
pursuant to the judgment of a state court.
U.S.C.
§ 2244(d)
1.
Specifically,
28
now reads:
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.
from the
The
limitation
period
shall
run
latest of—
"In all criminal prosecutions, the accused shall enjoy the
right
U.S.
...
Const,
liberty,
Const,
to have the Assistance of Counsel
amend.
for his defence."
VI.
"No State shall . . . deprive any person of life,
or property, without due process of law . . . ." U.S.
amend.
XIV,
§ 1.
4
(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;
(B)
the date on which the impediment to
filing an application created by State
action in violation
or
laws
of
the
of the Constitution
United
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.
§ 2244(d).
Commencement Of The Statute Of Limitations
Piggott's
AEDPA
on
judgment
Wednesday,
petition
for
States.
Hill
("[T]he
one-year
1,
July
certiorari
v.
became
in
Braxton,
limitation
final
2009,
the
277
for
the
Supreme
F.3d
701,
period begins
the
purposes
last
day
to
Court
of
the
704
(4th
running
Cir.
when
of
the
file
a
United
2002)
direct
review of the state conviction is completed or when the time for
seeking direct
review
§ 2244(d)(1)(A)});
has
Sup.
expired
Ct.
R.
. . . ."
13(1)
(citing
(petition
for
28
U.S.C.
certiorari
should be filed within ninety days of entry of judgment by state
court
of
review).
July 1,
last
resort
Accordingly,
or
of
the
order
denying
Piggott had one year,
discretionary
or until Thursday,
2010, to file a petition pursuant to 28 U.S.C.
§ 2254.
Piggott did not file his § 2254 Petition until June 25, 2011.
C.
To
Statutory Tolling
toll
the
"properly file[
statute
of
court
as
untimely
8 (2000).
fails
to
within the meaning of the AEDPA.
408,
417
a
prisoner
must
]" a state court petition for collateral review.
Artuz v. Bennett, 531 U.S. 4,
state
limitations
(2005)
A petition denied by a
qualify
as
"properly
Pace v. DiGuglielmo,
(internal quotation marks
omitted).6
filed"
544 U.S.
Though
Piggott submitted the First Petition to the Circuit Court prior
to
the
expiration
of
the
AEDPA
statute
of
limitations,
the
Circuit Court dismissed the First Petition for failure to comply
6 Piggott asks this Court to review the Circuit Court's
decision to deny his petition as untimely pursuant to Va. Code
§ 8.01-654(A)(2).
However, "[i]t is beyond the mandate of
federal habeas courts ... to correct the interpretation by
state courts
of a
state's own laws."
Sharpe v.
Bell,
593
F.3d
372, 383 (4th Cir. 2010) (citing Cagle v. Branker, 520 F.3d 320,
324 (4th Cir. 2008)); see Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) ("[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.").
with
Virginia's
petitions.
Cir.
statute
Piggott
Ct.
Sept.
v.
28,
654(A)(2); Haas v.
of
limitations
Kelly,
2010)
Warden,
(citing
governing
No. 10-52600,
Va.
Code.
Ann.
First
did not toll the AEDPA statute of limitations.
Second
because
148148,
Petition
did
the AEDPA statute
filing.7
Deville v.
of
not
warrant
limitations
Johnson,
§ 8.01-
Thus,
Petition,
Pace,
it
544 U.S.
F.3d
1256,
Petition.
ran
1259
for
(11th
724
days
Accordingly,
belated
Cir.
unless
commencement
or
tolling
(CMH/TRJ),
its
2010 WL
(citing Webster v. Moore,
2000)).
before
statutory
expired prior to
No. I:09cv72
at *2 (E.D. Va. Jan. 12, 2010)
limitations
to
(Va.
417.
The
199
at 3
Lee, 560 S.E.2d 256, 258 (Va. 2002)).
because Piggott failed to properly file the
at
habeas
Thus,
Piggott
the
filed
statute
the
of
§ 2254
Piggott demonstrates entitlement
equitable
tolling,
the
statute
of
limitations will bar his § 2254 Petition.
D.
Belated Commencement
In addition to the date on which a judgment becomes final,
federal
law
commence
on
7
provides
"the
date
Furthermore,
that
on
the
the
which
Circuit
statute
the
of
limitations
impediment
Court
to
dismissed
filing
the
may
an
Second
Petition for, inter alia, failure to comply with Virginia's
statute of limitations on habeas petitions.
Piggott v. Kelly,
Warden, No. 11-857, at 2-3 (Va. Cir. Ct. Sept. 8, 2011).
Thus,
Piggott
failed
Circuit Court.
to
properly
Pace,
544 U.S.
file
the
at 417.
7
Second
Petition
in
the
application
created
Constitution or
by
laws
of
State
the
action
in
violation
United States
is
of
removed,
the
if the
applicant was prevented from filing by such State action."
U.S.C. § 2244(d)(1)(B).
limitations,
both
and
(1) state
requires:
(2) violated the Constitution or laws
Ocon-Parada v. Young,
Va.
To delay the running of the statute of
§ 2244(d)(1)(B)
(3) prevented the
July 23,
F.3d 1328,
2010)
1331-32
28
prisoner
from
No. 3:09cv87,
filing
Fla.
that
of the United States
a
habeas
2010 WL 2928590,
(citing Johnson v.
(11th Cir.
action
petition.
at *2
(E.D.
Dep't of Corr.,
513
2008)).
Piggott asserts that:
During the months of March, April, and May of
2010, Mr. Piggott was assigned to a non-privilege
housing unit at Sussex I State Prison where he was
placed
on
22
hour
lockdown
and
restricted
from
communicating
with
jailhouse
lawyers
and
[had]
absolutely no access to the law library and to legal
material.
(Pet'r's Traverse
(Docket No. 15) 2 (capitalization corrected).)
Piggott appears to claim that the three months he spent in "non-
privilege housing"
prevented
court habeas petition.8
him
from filing a
(Id.; § 2254 Pet. 14.)
timely
state
Thus, Piggott
8 As explained above, this Court cannot review the Circuit
Court's determination that the First Petition was untimely
pursuant to Virginia's statute of limitations governing habeas
petitions.
See supra Part 11(C)
n.6.
argues,
this
Court
should
grant
him a belated commencement
of
the AEDPA's statute of limitations.
1.
State-Created
Impediment
In
Violation
Of
The
Constitution
The Court doubts that allegations of the ilk advanced by
Piggott adequately demonstrate his first two requirements under
28
U.S.C.
§ 2244(d)(1)(B):
a
state-created
impediment
"in
violation of the Constitution or the laws of the United States."
28
U.S.C.
§ 2244(d) (1) (B);
204 F.3d 1086,
prisoner
(11th Cir. 2000)
law
v.
United
States,
("The mere inability of a
unconstitutional impediment."); but see Egerton v. Cockrell,
334
438-39
the
Akins
an
433,
access
e.g.,
itself,
F.3d
to
1090
see,
(5th
library
Cir.
2003)
is
not,
("[A]
in
state's
failure
to
provide the materials necessary to prisoners to challenge their
convictions or confinement,
in this case a copy of the very
statute that is being used to render
time-barred,
invoking
exists,
petition
an
'impediment'
for
§ 2244(d)(1)(B).").
Because
no
"'abstract,
legal
assistance'"
freestanding
Finch
constitutes
[the prisoner's]
right
to
a
law
library
v.
Miller,
491
F.3d
or
424,
427
purposes
(8th
Cir.
of
2007)
(quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)), Piggott must
show that his segregation in the "non-privilege housing" (§ 2254
Pet.
14)
violated
his
constitutional
9
right
to
access
to
the
courts.
claim
See
that
government
a
Akins,
204
prison
F.3d
lockdown
impediment
at
1090
(rejecting petitioner's
constituted
denying him access
an
to
unconstitutional
the
courts because
he failed to show that the lockdown violated the Constitution).
Nevertheless,
the
constitutionality
of
Court
the
need
state
action
not
here
resolve
because
the
Piggott
cannot demonstrate success on the final prong:
that such action
actually
§ 2254
See
prevented
Ramirez
from
Yates,
v.
him
571
(emphasizing that
state
petitioner]
F.3d
presenting
from
timely
filing
993,
action must
his
a
1001
(9th
"altogether
claims
in
any
Petition.
Cir.
2009)
prevent[
form,
]
to
[a
any
court" to trigger § 2244(d)(1)(B)).
2.
Demonstration
That
Impediment Prevented
Federal
Even
Habeas
if circumstances
Alleged
Petitioner
State-Created
From Filing A
Petition
alleged by
Piggott
claim of unconstitutional state action,
could support
a
Piggott fails to assert
any specific facts showing how the three-month lockdown between
March
and May
of
2010
inhibited
him
from
submitting
a
§ 2254
Petition until June 25, 2011—nearly two years after the Circuit
Court entered judgment.9
"[Section 2244(d)(1)(B)] demands that a
9 Piggott claims that,
because federal petitions require
state exhaustion, any impediment to his state petition impeded
his federal petition.
(§ 2254 Pet. 14-15.)
However,
10
state-created
extending
federal
Cir.
exception,
habeas
2007)
Cir.
impediment
to
'prevent'
relief."
Wood
animate
a
v.
see
2007
Potter
WL
v.
749674,
Spencer,
*4
filing
F.3d
1,
for
7
(1st
633
F.3d 630,
States,
(E.D.
limitations-
from
487
296
United
at
the
prisoner
(citing Lloyd v. Van Natta,
2002));
l:06cvl57,
must,
(7th
Nos. I:03cr595,
Va.
Mar.
5,
2007)
(rejecting petitioner's claims that his placement in a holding
facility
for four months
institution
lawyers
with
no
and
access
constituted
a
filing a habeas
period
he
alleges
to
subsequent
legal
relocation
materials
government-created
Akins, 204 F.3d at 1090)).
and
his
or
to
an
jailhouse
impediment
(citing
Here, Piggott succeeded in executing
petition
in state
unconstitutional
court
state
during
action
the
same
prevented
Piggott from filing an application for habeas relief.10
These
the
Supreme
Court
has
explained
that
where
a
petitioner
has
reasonable
confusion
about
his
obligation to exhaust his state remedies, but was
concerned about the running of the federal statute of
limitations,
the
petitioner
should
file
a
"'protective' petition in federal court [ ] asking the
federal
court
to
stay
and
abey
the
federal
habeas
proceedings until state remedies are exhausted."
Qcon-Parada, 2010 WL 2928590, at *3 n.10 (quoting Pace, 544 U.S.
at 416).
Piggott failed to file any protective petition in
federal court.
10 Piggott provides no explanation why the Circuit Court did
not receive his First Petition,
2010,
until
May
3,
2010.
which he executed on April 12,
State
11
Petition
for
Writ
of
Habeas
facts refute the assertion that state action prevented him from
filing any habeas petitions,
F.3d at 1000-01;
Cir.
2000)
petition
state or federal.
Felder v. Johnson,
(noting
before
that
the
the
removal
204
F.3d 168,
petitioner's
of
See Ramirez,
the
171 n.9
filing
alleged
a
571
(5th
habeas
state-created
impediment suggests that the state action did not prevent him
from filing a petition).
Nothing in Piggott's
submissions explains how the alleged
state impediment arising from his three months in "non-privilege
housing" (§ 2254 Pet.
§ 2254 Petition.
14)
Thus,
actually prevented him from filing a
Piggott fails to demonstrate entitlement
to a belated commencement of the statute of limitations pursuant
to 28 U.S.C.
E.
§ 2244(d)(1)(B).
Equitable Tolling
Petitions
pursuant
equitable tolling.
2560
(2010).
to
28
U.S.C.
See Holland v.
The
Supreme
Court
§ 2254
Florida,
has
are
subject
130 S.
"made
Ct.
clear
to
2549,
that
a
'petitioner' is 'entitled to equitable tolling' only if he shows
'(1) that
he
has
been
pursuing
his
rights
diligently,
(2) that some extraordinary circumstance stood in his way'
prevented timely filing."
at 418).
Corpus,
Id.
at 2562
and
and
(quoting Pace, 544 U.S.
An inmate asserting equitable tolling "'bears a strong
Piggott
executed Apr.
12,
v.
Kelly,
Warden,
2010) .
12
No. 10-52600
(Va.
Cir.
Ct.
burden
to
show
specific
facts'"
both elements of the test.
(10th Cir. 2008)
(11th Cir.
that
Yang v. Archuleta,
(quoting Brown v.
Barrow,
he
fulfills
525 F.3d 925,
928
512 F.3d 1304, 1307
2008)).
Piggott
does
not
attempt
to
entitlement to equitable tolling.
Supp. 2d 724,
between
demonstrate
727-28
prison
(E.D.
Va.
facilities,
explain
a
basis
See Allen v.
2009
(Ellis,
solitary
for
Johnson,
J.)
his
602 F.
("' [T] ransfers
confinement,
lockdowns,
restricted access to the law library and an inability to secure
court documents do not qualify as extraordinary circumstances.'"
(quoting Warren
2002))).
with
v.
Moreover,
diligence
Kelly,
207
F.
Supp.
2d
6,
Piggott fails to demonstrate that
in filing
his
§ 2254
Petition.
Piggott does not qualify for equitable tolling.
fails
to
demonstrate
commencement or
10
any
equitable
meritorious
tolling,
the
he acted
Accordingly,
Because Piggott
grounds
§ 2254
(E.D.N.Y.
for
belated
Petition will be
denied as untimely.
III.
For the
foregoing
CONCLUSION
reasons,
(Docket No. 8) will be granted.
be denied,
Respondent's
Piggott's § 2254 Petition will
and the action will be dismissed.
13
Motion to Dismiss
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 right."
satisfies
this
28 U.S.C.
requirement
debate
whether
(or,
should
have
issues
presented
been
proceed further.'"
(quoting
Barefoot
Piggott
fails
to
for
were
only when
that
resolved
§ 2253(c)(2).
matter,
in
a
'adequate
Estelle,
meet
this
agree
different
to
Slack v. McDaniel,
v.
"reasonable
463
the
manner
or
could
petition
that
encouragement
529 U.S.
standard.
jurists
that)
deserve
U.S.
A petitioner
880,
473,
893
A
484
n.4
the
to
(2000)
(1983)).
certificate
of
appealability will therefore be denied.
The Clerk of the Court is directed to send a copy of this
Memorandum Opinion to Piggott and counsel for Respondent.
/s/
tsf
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date
$kx^/?/&>; V
14
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