Johnson v. Director of DOC

Filing 9

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/11/12. Copy sent: Yes(tdai, )

IN THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

JEFFREY ADAM JOHNSON,

Petitioner,
v.

Civil Action No.

3:11CV637

DIRECTOR OF DOC,

Respondent.
MEMORANDUM OPINION

Jeffrey Adam Johnson,
pro

se,

brings

("§ 2254
Court

this

Petition")

for

the

a Virginia state prisoner proceeding

petition

pursuant

challenging his

City

of

Portsmouth,

to

28

U.S.C.
in

convictions
Virginia

§

Circuit

the

("Circuit

2254

Court").

Respondent has moved to dismiss on the ground that the one-year
statute

of

limitations

the § 2254 Petition.

governing

federal

habeas

Johnson has not responded.

petitions

bars

The matter is

ripe for disposition.

I.

PROCEDURAL

HISTORY

Johnson pled guilty to armed common law burglary,

wounding,

and two counts of

of those felonies.
the

final

sentenced

Johnson

use of a firearm in the commission

On April

judgment

with

to

Johnson did not appeal.

a

malicious

2,

2008,

respect

ten-year

the Circuit Court entered

to

active

those

term

convictions

of

and

imprisonment.

On March 31,

2010,

Johnson submitted a petition for a writ

of habeas corpus to the Supreme Court of Virginia.1
2011,

the

Supreme

Court

of

Virginia

denied

On June 28,

Johnson's

petition

for a writ of habeas corpus.

On September 19, 2011,

this Court.
contends

Johnson filed his § 2254 Petition in

(§ 2254 Pet. 15.)2

entitlement

to

In the § 2254 Petition, Johnson

relief

upon

the

"Denial of effective assistance of counsel,

knowingly

and

counsel."

voluntarily

made

ground:

plea of guilty

based

on

[not]

misadvise

of

(Id. at 6 {capitalization corrected).)

II.

A.

because

following

ANALYSIS

Statute of Limitations

Respondent contends that the federal statute of limitations
bars

Johnson'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

pursuant

to

U.S.C.

a
the

§ 2244(d)

1 The

writ

of

habeas

judgment

of

corpus

a

state

by

a

person

court.

in

custody

Specifically,

28

now reads:

Supreme

Court

received on April 21,

of

Virginia

stamped

the

petition

2010.

2 The Court deems the petition filed on the date Johnson
swears

he

Houston v.

placed
Lack,

the

petition

487 U.S.

266,

in

276
2

the
(1988).

prison

mailing

system.

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
or

in

violation

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.

§ 2244(d).
Commencement of the Statute of Limitations

Johnson's

when

judgment

became

the

to

a

time

file

final

notice

of

on

Thursday,

appeal

May

expired.

1,

2 008,

Hill

v.

Braxton,

277

F.3d

701,

704

(4th

Cir.

2002)

(w[T]he

one-year

limitation period begins running when direct review of the state

conviction

is

completed

or

when

the

time

for

review has expired . . . ." (citing 28 U.S.C.

Va.

Sup.

appeal

Ct.

to

R.

be

5A:6(a)

filed

"within

judgment").

Therefore,

file

2254

his

§

statute

2008)

30

Because

state or federal,

of

§ 2244(d)(1)(A)));

(requiring

days

direct

after

a

notice

entry

of

of

final

Johnson had until Friday, May 1, 2009 to

Petition.

habeas petition,
the

(West

seeking

limitations

Johnson

until

bars

did

well

not

file

any

after that date,

Johnson's

current

§

2254

Petition.3

Respondent's
granted.

Motion

to

Dismiss

(Docket

No.

4)

will

be

The § 2254 Petition will be denied and the action will

be dismissed.

An appeal may not be taken from the final order in a § 22 54

proceeding unless a judge issues a certificate of appealability
rC0A").

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
debate

is

whether

3 Neither
equitable
period.

right."

satisfied
(or,

for

Johnson

tolling

or

a

28

only
that

U.S.C.

when

"reasonable

matter,

nor the record
belated

§ 2253(c)(2).

agree

jurists

that)

suggests

commencement

of

This

the

could

petition

any basis for
the

limitation

should

have

been

issues

resolved

presented

were

proceed further.'"

in

or

evidence

consideration

to

this

463 U.S.

that

matter.

529 U.S.
880,

Johnson
A

manner

deserve

Slack v. McDaniel,

suggests

in

different

^adequate

(quoting Barefoot v. Estelle,

law

a

is

or

the

encouragement

473,

893 n.4

of

484

to

(2000)

(1983)).

entitled

certificate

that

to

No

further

appealability

will therefore be denied.

The Clerk of the Court is directed to

send a copy of

this

Memorandum Opinion to Johnson and counsel for Respondent.
An appropriate Order shall issue.

Ml_

Is/
Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date:

7tlyr/,74'^