Webb v. Director, Virginia Department of Corrections
Filing
15
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 1/31/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
TRAVIS JAMES WEBB,
Petitioner,
v.
Civil Action No. 3:11CV792
DIRECTOR, VIRGINIA DEPARTMENT OF
CORRECTIONS,
Respondent.
MEMORANDUM OPINION
Travis James Webb, a Virginia state prisoner proceedingpro se, brings this petition
pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition"). Respondent moves to dismiss on the ground
that the one-year statute of limitations governing federal habeas petitionsbars the § 2254
Petition. Webb has responded. Respondent also filed a Motion to Submit Additional Exhibits.
(Docket No. 13.) That motion WILL BE GRANTED and the exhibits filed. The matter is ripe
for disposition.
I.
A.
PROCEDURAL HISTORY
State Proceedings
The Circuit Court for the City of Chesapeake, Virginia ("Circuit Court") convicted Webb
of two counts of abduction, robbery, two counts of use of a firearm in the commission of
abduction, and one count of use of a firearm in the commission of a robbery. The Circuit Court
entered final judgment with respect to those convictions on June 29, 2007. Commonwealth v.
Webb, Nos. CR05-1161 through CR05-1164, CR05-1406, and CR05-1407, at 2 (Va. Cir. Ct.
June 29, 2007). On June 20, 2008, the Supreme Court of Virginia refused Webb's petition for
appeal. Webb v. Commonwealth, No. 080358, at 1 (Va. June 20, 2008).
On March 11,2009, Webb filed a petition for a writ of habeas corpus in the Supreme
Courtof Virginia. Petitionfor Writ of Habeas Corpus 1, Webb v. Dir., Va. Dep'tCorr.,
No. 090465 (Va. filed Mar. 11, 2009). On September 4,2009, the Supreme Court of Virginia
denied the petition. Webb v. Dir., Va. Dep 't Corr., "No. 090465, at 1 (Va. Sept. 4, 2009). The
Supreme Court of Virginia subsequently dismissed Webb's petition for rehearing as untimely
filed. Webb v. Dir., Va. Dep't Corr., No. 090465, at 1 (Va. Jan. 19, 2010).
On July 23, 2010, Webb filed a petition for a writ of mandamus in the Circuit Court.
Petition for Writ of Mandamus 1, Webb v. Mitchell, No. CL10-1796 (Va. Cir. Ct. filed July 23,
2010). The Circuit Courtdismissed the petition on November 16,2010, finding it untimely and
finding that it requested reliefthat could not be granted by the Circuit Court. Webb v. Mitchell,
No. CL10-1796, at 1 (Va. Cir. Ct. Nov. 16, 2010).
On August 29,2011, Webb filed a second habeas petition in the Supreme Court of
Virginia. Petition for Writ of Habeas Corpus 1, Webb v. Dir., Va. Dep't Corr., No. 11624 (Va.
filed Aug. 29, 2011). On November 9,2011, the Supreme Court of Virginia dismissed Webb's
second petition as, inter alia, untimely pursuant to section 8.01-654(A)(2) of the Virginia Code.
Webb v. Dir., Va. Dep't Corr., No. 111624, at 1 (Va. Nov. 9,2011).
1This section states, inpertinent part, that:
A habeas corpus petition attacking a criminal conviction or sentence . . . shall be
filed within two years from the date 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 2012).
B.
Federal Habeas Petition
On November 22, 2011, Webb filed the present §2254 Petition in this Court.2 (§ 2254
Pet. 15.)3 In his § 2254 Petition, Webb contends:
Claim One:
The Court of Appeals of Virginia erred in denying his
delayed appeal;
Claim Two:
The Circuit Court abused its discretion by sentencing Webb
"'way over the guidelines'" despite Webb's long history of
mental illness (§ 2254 Pet. 7);
Claim Three:
The Circuit Court erred in finding Webb guilty given the
testimony of the co-defendant.
II.
ANALYSIS
A. Statute of Limitations
Respondentcontends that the federal statute of limitations bars Webb's claim.
Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28
U.S.C. § 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. 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;
2On October 30, 2008, prior to pursuing state habeas relief, Webb filed his first petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. Webb v. Dir., Va. Dep't
Corr., No. 3:08cv732 (E.D. Va. filed Oct. 30, 2008). Because Webb failed to exhaust his state
remedies, the Court dismissed the action without prejudice at Webb's request on March 4, 2009.
The Court deems the § 2254 petition filed on the date Webb swears he placed the
petition in the prison mailing system. Houston v. Lack, 487 U.S. 266, 276 (1988).
(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
preventedfrom 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)
the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
2.
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).
B.
Commencement of the Statute of Limitations Under 28 U.S.C.
§ 2244(d)(1)(A)
Webb's judgment became final on Thursday, September 18,2008, when the time to file a
petition for a writ ofcertiorari expired.4 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))); see Sup. Ct. R. 13(1) (petition for certiorari should be filed within ninety days
of entry ofjudgment by state court of last resort or of the order denying discretionary review).
The limitation period began to run the next day, and 173 days of the limitation period elapsed
4Webb indicates that he filed a petition for a writ of certiorari in the United States
Supreme Court, however, the Supreme Court dismissed it as untimely filed. (§ 2254 Pet. 3^.)
Webb's untimely petition does not delay the date at which his conviction became final under 28
U.S.C. § 2244(d)(1)(A). See, e.g., Edwards v. UnitedStates, 295 F. App'x 320, 321 (11th Cir.
2008) (refusing to extend commencement of limitations period for untimely petition for writ of
certiorari subsequently denied by Supreme Court); UnitedStates v. Bendolph, 409 F.3d 155 158—
59 n.5 (3d Cir. 2005)(citing cases).
4
before Webb filed his first state petition for habeas corpus on March 11, 2009. See 28 U.S.C.
§ 2244(d)(2).
C.
Statutory Tolling
To qualify for statutory tolling, an actionmust be a (1) properly filed (2) post-conviction
or other collateral review of (3) the pertinent judgment. See id. "[A]n application is 'properly
filed' when its delivery and acceptance are in compliancewith the applicable laws and rules
governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). These rules and laws "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." Id. (footnote omitted) (citing
cases). A petition that is denied by a state court as untimely is not "properly filed" within the
meaningof the AEDPA. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). Here, the limitation
period remained tolled from March 11, 2009 until September 4, 2009, when the Supreme Court
ofVirginia dismissed Webb's first state petition for a writ ofhabeas corpus.5
Because Webb pursued an untimely petition for rehearing of that decision, the time that
Webb's petition for rehearing was pending before the Supreme Court of Virginia fails to further
toll the limitation period. See id. Virginia Supreme Court Rule 5:20(a)6 dictates the timing for a
petition for rehearing. A petition for rehearing filed beyond the prescribed period, such as
Webb's, fails to qualify for statutory tolling. See, e.g., Escalante v. Watson, No. 10-7240, 2012
5Webb filed his first petition for a writ ofhabeas corpus pursuant to 28 U.S.C. § 2254 in
this Court on October 30, 2008. Webb's first federal petition fails to qualify as an '"application
for State post-conviction or other collateral review'" within the meaning of the AEDPA, thus, he
lacks entitlement to tolling during the pendency of his first habeas petition. Duncan v. Walker,
533 U.S. 167, 181-82 (2001) (quoting 28 U.S.C. § 2244(d)(2)).
6The rule states in relevant part: "When a petition for appeal is either refused or
dismissed .... appellant may, within 14 days after the date of this order, file in the office of the
clerk of this Court a petition for rehearing." Va. Sup. Ct. R. 5:20(a) (West 2012).
5
WL 2914239, at *6 (4th Cir. July 18, 2012) (refusing to toll limitation period for the time period
where the inmate's defective petition for appeal was pendingbefore the Supreme Courtof
Virginia); Hines v. Johnson, No. 2:08cvl02, 2009 WL 210716, at *2 (E.D. Va. Jan. 28, 2009)
(precluding tolling the timebetween the state's denial of a habeas petition andthe untimely
petition for appeal of that decision).
Similarly, Webb's untimely petition for a writ of mandamus fails to qualify for statutory
tolling. The Circuit Court dismissed the petition as barred by the one-year limitation period set
forth insection 8.01-644.1 ofthe Virginia Code7 and found it requested reliefthat the Circuit
Court could not grant. Webb v. Mitchell, No. CL10-1796, at 1 (Va. Cir. Ct. Nov. 16,2010).
Additionally, Webb's second, untimely state petition for a writ of habeascorpusfails to qualify
for statutory tolling. See Pace, 544 U.S. at 417.
Thus, the limitationperiod began to run again upon the dismissal of Webb's first state
habeas petition on September 4,2009. The limitation period ran for an additional 808 days
before he filed his present § 2254 Petition on November 22, 2011. Becausethe limitation period
ran for a total of 981 days before Webb filed his § 2254 Petition, the statute of limitations bars
the § 2254 Petition unless Webb demonstrates entitlementto a belated commencement of the
limitation period under 28 U.S.C. § 2244(d)(l)(B)-(D) or equitable tolling. Webb argues that his
prior mental incompetency warrants equitable tolling.
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
7"Apetition for extraordinary writ of mandamus, filed by or on behalf of a person
confined in a state correctional facility, shall be brought within one year after the cause of action
accrues." Va. Code. Ann. § 8.01-644.1 (West 2012).
'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'" that demonstrate he fulfills both elements of the test. Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307
(11th Cir. 2008)).
Webb seeksequitable tollingbased on his mental incapacity. Only in instances of
"profound mental incapacity" will the Court apply equitable tolling. United States v. Sosa, 364
F.3d 507, 513 (4th Cir. 2004) (citing Grant v. McDonnell Douglas Corp., 163 F.3d 1136,1138
(9th Cir. 1998)). Moreover, to prove entitlement to equitable tolling Webb '"must make a
threshold showing of incompetence and must also demonstrate that the alleged incompetence
affected [his] ability to file a timely habeas petition.'" Robison v. Hinkle, 610 F. Supp. 2d 533,
539-40 (E.D. Va. 2009) (alteration in original) (quoting McSwain v. Davis, 287 F. App'x 450,
456 (6th Cir. 2008)). Here, the record contains ampleevidence to support that threshold showing
of incompetence.
Webb argues that inJanuary orFebruary 2010,8 the state court "found [him] incompetent
to stand trial which had a big effect on petitioner understanding and filing any legal process
timely and correctly." (PL's Opp'n Mot. Dismiss ^ 5 (spelling corrected).) Later in his
pleadings, he contends he "filed [a] subsequenthabeas in the Supreme Court of Virginiaon
August 29, 2011, after returning from [a] 6-monthtreatment and evaluationback to restoration to
competency [in] Central State Hospital. Petitioner filed to correct any errors made while filing
incompetent and under diminished capacity." (Id. ^ 7 (grammar and capitalization corrected).)
8The Court notes thatthe limitations period for his § 2254 Petition had notexpired as of
this date.
7
Webb's submissions bear out his claims of incompetency. A February 16, 2010 letter
Webb submitted indicates that he faced charges in the Circuit Courtfor the County of
Greensville ("Greensville Circuit Court") in 2010. The Greensville Circuit Court ordered a
competency evaluation, and "Dr. David Epstein opined that [Webb] is incompetent to stand trial,
and that he is in need ofinpatient restoration services." 9 (Id. Ex. 10, at l).10 According to an
October 27,2010 letter,11 "[b]y Order dated 3 June 2010, Judge Campbell ordered treatment of
suchincompetent defendant on an in-patient basis at Central State Hospital in an effort to restore
him to competency." (Id. at 4.) In his October 27, 2010 letter, Waldrop asked Dr. Epstein to
advise him and other named persons regarding Webb's competency status. (Id.)
Despite Webb's apparent incompetency after February 2010, the record indicates that in
April, May, July, August, and October 2010, the statehoused Webb in Greensville Correctional
Center and Sussex II State Prison, not in Central State Hospital or in any other inpatient
treatment facility. (See id. 2-4); Petitionfor Writ of Mandamus 3-4, Webb v. Mitchell,
No. CL10-1796 (Va. Cir. Ct. filed July 23,2010); Circuit Court's Letter 1, Webb v. Mitchell,
No. CL10-1796 (Va. Cir. Ct. filed Aug. 2,2010); Motion to Dismiss 7, Webb v. Mitchell,
No. CL10-1796 (Va. Cir. Ct. filed Oct. 18,2010). The Court also notes that Webb pursued
litigation in the state courts in 2010, including a petition for a writ of mandamus filed in July
2010. Nonetheless, based upon the record and Respondent's failure to address Webb's equitable
9Rebecca V. Stredny, Chief Forensic Coordinator for Central State Hospital, submitted
the letter to the Greensville Circuit Court.
10 Exhibit 10 consists of four pages.
11 This letter to Dr. Epstein comes from Jerry E. Waldrop, the attorney who appears to
represent Webb on the Greensville Circuit Court charges.
8
tolling arguments, the Court cannot discern when, if ever, the state restored Webb to
competency, and thus, lacks the ability to determine the relevant period of incompetency.
The Court recognizes that Webb must also demonstrate that his incompetency prevented
him from timely filing his § 2254 Petition. Robison, 610 F. Supp. 2d 539-40 (explaining that
petitioner must show causal relationship). Given the current state of the record and the limited
briefing, the Court declines at this juncture to determine whether Webb's incompetency caused
him to untimely file his § 2254 Petition. See Laws v. Lamarque, 351 F.3d 919, 923-25 (9th Cir.
2003) (finding trial court abused its discretion by denying § 2254 petition where record was
"patently inadequate" to evaluate strength of petitioner's incompetency claims for equitable
tolling and state offered no countervailing evidence, and remanding for further factual
development).
III.
CONCLUSION
Accordingly, Respondent's Motion to Dismiss (Docket No. 8) will be denied without
prejudice. Respondent will be directed, within thirty (30) days of the date of entry hereof, to file
a further response, which may raise any procedural defenses and must address the merits of
Webb's claims. Should Respondent wish to renew his procedural defense alleging the
untimeliness of Webb's petition, Respondent must provide a copy of the records from the Circuit
Court for the County of Greensville pertaining to Webb's restoration to competency and fully
brief the issue of equitable tolling.
The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Webb
and counsel for Respondent.
An appropriate Order shall issue.
JsL
James R. Spencer
United States District Judge
Richmond, Virginia
10
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