Williams v. Smith
Filing
33
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 9/10/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
GARY B.WILLIAMS,
Petitioner,
Civil Action No. 3:11CV578-HEH
v.
WILLIAM C. SMITH,
Respondent.
MEMORANDUM OPINION
(Denying 28 U.S.C. § 2254 Petition)
Gary B. Williams, a Virginia state prisoner proceedingpro se and informa
pauperis, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition")
challenginghis convictions in the Circuit Court for the City of Richmond, Virginia
("Circuit Court"). Respondent movedto dismiss on the ground that the one-year statute
of limitations governing federal habeas petitions bars the § 2254 Petition. Williams
responded. The matter is ripe for disposition.
I. PROCEDURAL HISTORY
A.
Original Conviction
On December 9,2005, Williams pled guilty, pursuant to a plea agreement, in the
CircuitCourtfor the City of Richmond, Virginia ("Circuit Court") to one count of
involuntary manslaughter. The CircuitCourt sentenced Williams to five years of
imprisonment with three years and eleven months suspended, resulting in a total active
sentence of one year and one month of imprisonment. Commonwealth v. Williams,
No. CR04-F-4668 (Va. Cir. Ct. Dec. 9, 2005). Williams did not file a direct appeal.1
B.
Revocation Proceeding
On December 3, 2008, following Williams's indictment in this Court for narcotics
violations, the Circuit Court ordered Williams to show cause why the suspended portion
of his December 9, 2005 sentence should not be revoked. Commonwealth v. Williams,
No. 04-F-4668-01/BBC (Va. Cir. Ct. Dec. 3, 2008).
On April 10, 2011, Williams filed a petition for a writ of habeas corpus in the
Court of Appeals of Virginia challenging his ongoing probation revocation proceedings
("First StateHabeas"). "Findingno exceptional circumstances in this casejustifying
exercise of [the Court of Appeals of Virginia's] original jurisdiction," the Court of
Appeals of Virginia dismissed the petition without prejudice to file in the appropriate
court. Williams v. Simons, No. 0745-11-2 (Va. Ct. App. June 3, 2011).
On June 20, 2011, Williams executed a petition for a writ of habeas corpus
directed to the Supreme Court of Virginia challenging both his December 9, 2005
conviction and his ongoing revocation proceedings ("Second State Habeas"). On August
Williams did, however, attempt to perfect two pro se interlocutory appeals of Circuit
Court orders granting a continuance and granting a motion to nolle prosequi a child neglect
charge. Though the Courtof Appeals of Virginia explained that "[njeither order [was]
appealable," Williams v. Commonwealth, No. 195-05-2, at 1 (Va. Ct. App. July 5, 2005),
Williams continued his attempt to appeal bypetitioning the Supreme Court of Virginia. The
Supreme Court of Virginia subsequently "barred [Williams] from filing any pro se pleadings
with the Courtof Appeals or Supreme Courtof Virginia without [the] prior leave of that Court.'
Williams v. Commonwealth, No. 051445, at 1 (Va. Sept. 16, 2005)(emphasis added).
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11, 2011, the Supreme Court of Virginia dismissed the petition as untimely. Williams v.
Superintendent, W. Tidewater Reg'IJail, No. 111165 (Va. Aug. 11,2011).
On March 27, 2012, the Circuit Court found Williams in violation of the terms of
his December 9, 2005 suspended sentence. Commonwealth v. Williams, No. CR04-F-
4668 (Va. Cir. Ct. Mar. 27, 2012). The Circuit Court revoked the previously suspended
sentence, ordering Williams to serve three years and eleven months of imprisonment. Id.
C.
Williams's Federal Habeas Petition
On August 23, 2011, Williams filed a § 2254 Petition in this Court. (§ 2254 Pet.
15, Dk. No. I.)2 In the §2254 Petition, Williams makes the following claims for relief:
Claim One
The Circuit Court denied Williams due process by
accepting Williams's plea agreement.
Claim Two
Due to the Circuit Court's error in accepting the plea
agreement, Williams's plea to the charge of
involuntary manslaughter is void.
Claim Three
The Circuit Court denied Williams meaningful access
to courts during his revocation proceedings.
Claim Four
"'Outrageous Government Conduct' by the state
warrants dismissal of [Williams's] revocation
proceedings, and underlying conviction." (§ 2254
Pet. 11.)
II. ANALYSIS
Although ECF reflects a filing date of Sept. 6, 2011, The Court deems the petition filed
on the date Williams swears he placed the petition in the prison mailing system. Houston v.
Lack, 487 U.S. 266, 276 (1988).
3
Where a petitioner challenges both his original conviction and a probation
revocation related to that conviction in the same 28 U.S.C. § 2254 petition, it is
appropriate for the Court to separate the claims relating to the original conviction from
the claims relating to the probation revocation. See Retic v. United States, 321 F. App'x
865, 865 (11th Cir. 2009) (upholding district court determination that separatejudgments
attacked in same habeas petition have separate statutes of limitations); Hardemon v.
Quarterman, 516 F.3d 272,275-76 (5th Cir. 2008) (emphasizing that petitioners may
attack multiple judgments from same state court in single § 2254 petition).3 Williams's
Claims One and Two challenge his original conviction and Claims Three and Four
challenge his revocation proceedings. Respondent contends that the statute of limitations
bars Claims One and Two and that Williams failed to exhaust his state remedies
regarding Claims Three and Four. Respondent is correct. Accordingly, as explained
below, Claims One and Two will be dismissed with prejudice and Claims Three and Four
will be dismissed without prejudice.
III. STATUTE OF LIMITATIONS
Section 101 of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") amended 28 U.S.C. § 2244 to establish a one-year limitations period for the
3See also Short v. Eagleton, No. 8:05-2915-GRA-BHH, 2006 WL 2583614, at *6
(D.S.C. Sept. 6, 2006) (considering petitioner'sclaims relating to original conviction separately
from claims relating to probation revocation); Hathcock v. McDonough, No. 07-61836-CIV,
2008 WL 2814868, at *5 (S.D. Fla. July 22, 2008) (stating that, where petitioner challenges
original conviction and probation revocation in the same habeas petition, the one-year statute of
limitations runs separately for each judgment (citing Williams v. Vasbinder, No. 05-73471-DT,
2006 WL 2123908, at *2 (E.D. Mich. July 27, 2006))).
4
filing of a petition for a writ of habeas corpus by a person in custody pursuant to the
judgment of a state court. Specifically, 28 U.S.C. § 2244(d) now reads:
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 latest of—
(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 of the
Constitution or laws of the 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; or
(D)
2.
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. § 2244(d).
A.
Commencement of the Statute of Limitations
Thirty days after Williams's December 9, 2005 sentencing for involuntary
manslaughter in the Circuit Court, thatjudgment became final for purposes of AEDPA.
Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) ("[T]he one-year limitation period
begins running when direct review of the state conviction is completed or when the time
for seeking direct review has expired
") (citing 28 U.S.C. § 2244(d)(1)(A)); Va. Sup.
Ct. R. 5A:6(a) (West 2005).4 Thus, Williams's original conviction became final on
Monday, January 9, 2006, the last date to file his notice of appeal. Williams then had one
year, or until Tuesday, January 9, 2007, to file any federal habeas challenge to his
original conviction or sentence. Williams did not file the § 2254 Petition until August 23,
2011.
B.
Statutory Tolling
The AEDPA's one-year statute of limitations expired prior to the filing of either of
Williams's two relevant state court habeas petitions. Thus, neither of these state court
habeas petitions could toll the AEDPA statute of limitations. See Deville v. Johnson,
No. I:09cv72 (CMH/TRJ), 2010 WL 148148, at *2 (E.D. Va. Jan. 12, 2010) (citing
Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)).5 Therefore, the statute of
limitations ran for 2051 days before Williams filed the § 2254 Petition in this Court.
Accordingly, unless circumstances entitle Williams to either a belated commencement or
equitable tolling, the statute of limitations bars Claims One and Two.
4"No appeal shall be allowed unless, within 30 days after entry offinal judgment or other
appealableorder or decree, counsel files with the clerk of the trial court a notice of appeal
Va. Sup. Ct. R. 5A:6(a) (West 2005).
5Additionally, Williams failed to timely file the Second State Habeas in state court.
Thus, even if Williams had filed it within the AEDPA's limitations period, the Second State
Habeas would still not be "properly filed." Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
"
C.
Belated Commencement
As pertinent here, the statute of limitations may commence on "the date on which
the impediment to filing an application created by State action in violation of the
Constitution or laws of the United States is removed, if the applicant was prevented from
filing by such State action." 28 U.S.C. § 2244(d)(1)(B). To delay the running of the
statute of limitations, § 2244(d)(1)(B) requires: (1) state action that both (2) violated the
Constitution or laws of the United States and (3) prevented the prisoner from filing a
habeas petition. Ocon-Parada v. Young, No. 3:09cv87, 2010 WL 2928590, at *2 (E.D.
Va. July 23, 2010) (citing Johnson v. Fla. Dep'tofCorr., 513 F.3d 1328, 1331-32 (11th
Cir. 2008)). "[Section 2244(d)(1)(B)] demands that a state-created impediment must, to
animate the limitations-extending exception, 'prevent' a prisoner from filing forfederal
habeas relief" Wood v. Spencer, 487 F.3d 1, 7 (1st Cir. 2007) (emphasis added) (citing
Lloydv. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002)).
Williams claims that the Circuit Courtand Virginia's appellate courts colluded to
preventhim from filing either a direct appeal or state habeas petition attacking his
December 9, 2005 involuntary manslaughter conviction. Nevertheless, absent entirely
from Williams's submissions is any explanation as to why he waited nearly six years
afterhis December 9, 2005 conviction to file afederal petition pursuant to 28 U.S.C.
§ 2254.
Accordingly, Williams fails to demonstrate that he is entitled to a belated
commencement of the limitation period under § 2244(d)(1)(B).
D.
Equitable Tolling
Petitions pursuant to 28 U.S.C. § 2254 are subject to equitable tolling. See
Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). The Supreme Court has "made clear
that a 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way' and prevented timely filing." Id. at 2562 (quoting Pace, 544 U.S. at 418). An
inmate asserting equitable tolling "bears a strong burden to show specific facts" which
demonstrate that he fulfills both elements of the test. Brown v. Barrow, 512 F.3d 1304,
1307 (11th Cir. 2008).
Williams does not attempt to explain any reason why he should be entitled to
equitable tolling. Moreover, Williams fails to demonstrate that he pursued his rights
diligently or that some extraordinary circumstance prevented him from filing a timely
federal petition for a writ of habeas corpus. Accordingly, Williams is not entitled to
equitable tolling.
Because Williams fails to demonstrate any meritorious grounds for either
equitable tolling or a belated commencement of the limitation period, Claims One and
Two will be dismissed with prejudice.
IV. EXHAUSTION OF STATE REMEDIES
Beforea state prisonercan bring a § 2254 petitionin federal district court, the
prisoner must first have "exhausted the remedies available in the courts of the State." 28
U.S.C. § 2254(b)(1)(A). State exhaustion "is rooted in considerations of federal-state
comity," and in the congressional determination via federal habeas laws "that exhaustion
of adequate state remedies will 'best serve the policies of federalism.'" Slavekv. Hinkle,
359 F. Supp. 2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475,
491-92 & n.10 (1973)). The purpose of exhaustion is "to give the State an initial
opportunity to pass upon and correct alleged violations of its prisoners' federal rights."
Picardv. Connor, 404 U.S. 270,275 (1971) (internal quotation marks omitted).
Exhaustion requires the petitioner to make a two-part showing. First, a petitioner
must utilize all available state remedies before he or she can apply for federal habeas
relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a
petitioner has exhausted all available state remedies, the statute notes that a habeas
petitioner "shall not be deemed to have exhausted the remedies available in the courts of
the State ... if he has the right under the law of the State to raise, by any available
procedure, the question presented." 28 U.S.C. § 2254(c).
The second aspect of exhaustion requires a petitioner to have offered the state's
courts an adequate opportunity to address the constitutional claims advanced on federal
habeas. "Toprovide the State withthe necessary 'opportunity,' the prisoner must 'fairly
present' his claim in each appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court to the federal nature ofthe
claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S.
364, 365-66 (1995)).
Here, Williams failed to properly present Claims Three and Four to the Supreme
Court of Virginia. As of June 12, 2012, Williams has not filed a direct appeal of the
March 27, 2012 revocation judgment.6 Additionally, Williams has not filed aproper
habeas petition in the Circuit Court or the Supreme Court of Virginia challenging the
March 27,2012 judgment.
This Court acknowledges that Williams challenged aspects of the revocation
proceedings in the Second State Habeas. However, in Virginia, habeas petitioners
challenging revocation proceedings must file within "one year after the cause of action
accrues." Booker v. Dir., Dep't Corr., No. 111363, 2012 WL 2053855, at *1 (Va. June 8,
2012) (emphasis added) (citing Va. Code Ann. § 8.01-654(A)(2)). Williams's cause of
action for his probation revocation proceedings did not accrue until March 27, 2012,
"when the [Cjircuit [C]ourt entered the order under which [Williams] is currently
detained." Id. When Williams executed the Second State Habeas on June 20, 2011, his
probation revocation cause of action had yet to accrue. See Va. Code Ann. § 8.01654(A)(2). Thus, Williams's probation revocation claims in the Second State Habeas did
not comply with Virginia's procedural rules governing habeas proceedings. Accordingly,
Williams failed to exhaust these claims because theywere neverproperly presented to the
Supreme Court of Virginia. SeeMallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994)
("Meaningful exhaustion is that which accords with the state's chosen procedural
scheme. Indeed, the exhaustion provisions in Title 28 presuppose the presentation of
claims in accordance with nonfutile state procedures.") (citing 28 U.S.C. § 2254(c)).
Generally, Virginia requires that, to perfect an appeal, the appellant must file a notice of
appeal in thetrial court within thirty days of the entry of final judgment. See Va. Sup. Ct. R.
5A:6(a) (West 2012).
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As explained above, the Commonwealth of Virginia has not been given "an initial
opportunity to pass upon and correct alleged violations of its prisoners' federal rights."
Picard, 404 U.S. at 275 (internal quotation marks omitted). Furthermore, Williams fails
to satisfy the first aspect of exhaustion because he can still file a petition for a writ of
habeas corpus challenging his probation revocation with the state courts. Va. Code Ann.
§ 8.01-654(A)(2). Thus, Claims Three andFourwill be dismissed without prejudice to
re-file after Williams exhausts his state court remedies.
V. CONCLUSION
For the foregoing reasons, Williams's Claims One and Two will be dismissed with
prejudice. Claim Three and Four will be dismissed without prejudice for Williams to
pursue in state court. Respondent's Motion to Dismiss (Dk. No. 10) will be granted and
Williams's § 2254 Petition will be denied. The action will be dismissed.
An appeal may not be taken from the final order in a § 2254 proceeding unless a
judgeissues 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." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when
"reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
n
This section provides, in pertinent part: "A petition for writ of habeas corpus ad
sujiciendum, other than a petition challenging a criminal conviction or sentence, shall be brought
within one year after the cause of action accrues." Va. Code Ann. § 8.01-654(A)(2). Ofcourse,
Williams must act before March 27,2013 in pursuing a state petition for a writ of habeas
corpus.
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'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S.
473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). No law or
evidence suggests that Williams is entitled to further consideration in this matter. A
COA will therefore be denied.
An appropriate Order shall issue.
^^^
/s/
HENRY E.HUDSON
Date:&pr /o 2o/l
UNITED STATES DISTRICT JUDGE
Richmond, Virginia
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