Drew v. Johnson
Filing
26
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 7/18/13. Copy sent: Yes(tdai, )
IN THE UNITED
FOR THE
STATES DISTRICT
I
E
COURT
L
E
JUL 2 2 2013
EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK, U.S. DISTRICT COURT
RICHMOND. VA
TROY DEWYON DREW,
Petitioner,
Civil Action No.
v.
GENE M.
3:11CV843
JOHNSON,
Respondent.
MEMORANDUM OPINION
Troy
Dewyon
28 U.S.C.
which
§ 2254
the
executed
ground
Drew,
that,
governing
("§ 2254
Virginia
his
v.
Drew,
of
inter
the
federal
alia,
habeas
petition
challenging
Corrections
Respondent
moves to
one-year
petitions
the
to
the manner
in
("VDOC")
dismiss
statute
bars
pursuant
of
has
on the
limitations
§ 2254
Petition.
The matter is ripe for disposition.
PROCEDURAL
HISTORY
Pertinent State Proceedings
On July 23,
of
Petition")
Department
I.
City
this
sentence.1
Drew has responded.
A.
brings
1996,
Portsmouth
No.
December 10,
("Circuit
CR96-1477,
1996,
Drew was convicted in the Circuit of the
at
1
Court")
(Va.
of
Cir.
robbery.
Ct.
Dec.
Commonwealth
10,
1996).
On
the Circuit Court sentenced Drew to an active
1 The Court employs the pagination assigned to this document
by the Court's CM/ECF docketing system.
The Court corrects the
capitalization to the quotations to the § 2254 Petition.
term
of
imprisonment
of
seven
(7)
(hereinafter "the 1996 Sentence").
On
July
another
1997,
robbery
commission
01,
15,
of
a
felony.
CR96-1823-02,
Circuit
Court
imprisonment
Sentence").
Aff.")
at
for
Id.
of
Court
use
found
of
Commonwealth v.
1-2
(Va.
sentenced
Cir.
Drew
those
that
to
Ct.
a
Drew guilty of
firearm
Drew,
Oct.
Nos.
21,
eighteen
offenses
December
the
(ECF No.
16-4)
(18)
31,
1997,
Drew was
Supp.
Mot.
SI 4. )
Update
Encl.
reflected that
and
seven
(7)
consecutively.
the
CR96-1823The
years
"the
of
1997
transferred to the
Dismiss
Ex.
On or about February 4,
from the VDOC
which
A,
Drew's
months
at
1.)
"TOTAL
and
(Brown Aff.
Specifically,
SENTENCE"
that
all
Encl.
A,
of
the
eighteen
his
sentences
listed a sentence start date of April 22,
("Brown
1998,
Drew
(Id.
Legal
was
at 1-2.)
C
reflected how the
VDOC intended to execute his 1996 and 1997 Sentences.
Aff.
in
1997).
{hereinafter
(Mem.
VDOC.
received a Legal
Brown
offense
at 1.
On or about
custody of
and
for
Id.
the Circuit
offense
months
(18)
SI 5;
Update
years
would
run
The Legal Update
1996.
(Id. at l.)2
The Legal Update further reflected that Drew had 618 jail credit
2 Thus, the VDOC commenced the running of Drew's sentences
from his initial incarceration in the Portsmouth City Jail on
April 22, 1996, prior to actual imposition of the 1996 Sentence.
days
and his
day
adjusted
Over
the
anticipated good time release date with a thirtydischarge
ensuing
was
years,
February
Drew
was
27,
2013.
convicted
institutional offenses which has resulted in
(Id.
of
a
at
1-2.)
host
forfeiture of
of
good
time credits and periods of time where Drew failed to earn any
good time credits.
(See Mem.
Supp. Mot.
Dismiss Ex. A Encl.
D
(ECF No. 16-2) passim.)3
B.
On
Federal Habeas Petition
or around October 30,
Petition in this Court.
2011,4
In the §
2254
Drew filed his
Petition,
§ 2254
Drew makes the
following claims for relief:
Claim One
"Petitioner states the Defendant has not given
Petitioner
any
of
the
preconviction
or
postconviction jail credit he (Petitioner) served
while in jail which was 618 days."
(§ 2254
Pet.
5.)
3 In 2010, Drew filed a petition for a writ of habeas corpus
in the Circuit Court.
It is unnecessary to recount the history
of those proceeding because the statute of limitations had
expired almost a decade earlier.
See infra Part II.B.
4 The Court deems a § 2254 petition filed on the date that
an inmate places the petition in the prison mailing system for
mailing to the Court.
See Houston v. Lack, 487 U.S. 266, 276
(1988) .
Drew swears that placed his § 2254 Petition in the
prison mail system on August 24, 2011.
(§ 2254 Pet. 16.)
The
Court,
however,
did not receive the § 2254
Petition until
December 19,
2011.
(Id.
at 1.)
The in forma pauperis affidavit
that accompanied the § 2254 indicates that it was not executed
until October 30, 2011.
(ECF No. 1-2, at 1.)
Therefore, Drew
could not have placed his § 2254 Petition in the prison mail
system for mailing to the Court before that date.
Claim Two
"Petitioner
states
Defendant
did
preconvictionally - postconvictionally
Plaintiff's
7
month
jail
sentence
served."
Claim Three
(IcL
"Petitioner
not
credit
already
at 7.)
states
that
the
states
Defendant
ranned [sic] Petitioner[']s 7 month time served
conviction consecutively with his 18yr. sentence
which he[']s serving making his 18yr. sentence
excessive been [sic]
such sentence has already
been
served
and
was
never
an
[sic]
sentence ordered by the courts
order."
(Id^ at 8.)
Claim Four
Initially,
the Court notes that
pertaining to allegedly inadequate
a
writ
No. 3:02CV435,
2002)
sentencing
"Petitioner states that the defendant is failing
to provide Petitioner with an [sic] medical diet
in keeping with Petitioner[']s
needs . . . ." (Id^ at 10.)
for
consecutive
in its
of
habeas
2002
(concluding
WL
care
See
32362032,
McCain
at
for
medical
Drew cannot pursue
medical
corpus.
a petition
serious
*l-2
a writ
(E.D.
of
claims
in a petition
v.
Garrity,
Va.
habeas
July
16,
not
the
is
appropriate vehicle for challenging allegedly inadequate medical
care).
prejudice
§ 1983.5
Accordingly,
to
pursuing
Claim
as
a
Four
claim
As explained below,
the remainder of Drew's
will
for
be
dismissed
relief
under
42
without
U.S.C.
the statute of limitations bars
claims.
5 The statute provides, in pertinent part:
Every
person
statute ... of any
who,
State
under
color
. . . subjects,
of
any
or causes
II.
A.
ANALYSIS
Statute Of Limitations
Respondent contends that the federal statute of limitations
bars
Drew's
Effective
claim.
Death
Section
Penalty Act
101
of
("AEDPA")
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
writ
the
§ 2244(d)
1.
of
habeas
judgment
of
a
corpus
state
by
a
court.
person
in
custody
Specifically,
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.
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
laws
violation
of
the
of
the
United
Constitution
States
is
removed, if the applicant was prevented
from filing by such State action;
to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law ....
42 U.S.C.
§
1983.
28
(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.
§ 2244(d).
B.
Running Of The Statute Of Limitations
Because
rather
Drew
than
the
challenges
judgment
of
the
execution
conviction,
of
section
his
sentence
2244(d)(1)(D)
controls the date on which the limitation period commences.
See
Childs
Va.
Dec.
v.
Johnson,
2010)
Cir.
(quoting Wade v.
2003)).
claims
(citing
is
3:09cv793,
"[T]he
[the]
Wade,
327
F.3d
calculation
at
the
exercise
of
due
5186757,
327
factual
at
F.3d 328,
predicate
of
333).
therefore began running on the date
through
WL
Robinson,
relevant
VDOCs
2010
his
The
*3
(E.D.
332-33
for
[Drew's]
sentence."
limitations
(4th
Id.
period
Drew could have discovered,
diligence,
calculation of his sentence by the VDOC.
the
allegedly
illegal
The
February 4,
information
failed
to
he
1998
Legal
to
pursue
needed
properly
award
him
Update
his
claims
credit
time served (Claims One and Two)
provided
Drew
against
any
the
VDOC
had
sentence
that
with
for
his
or that the VDOC had improperly
required him to serve his sentences consecutively (Claim Three).
Thornton v.
Dir.
of Va.
WL 589007,
at *2
at 333) .
Dep't of Corr.,
Accordingly,
1999,
to
failed
years
current
file
his
§
that
Petition,
2254
date,
unless
claims
for
Petition
7:12-cv-00443,
(citing Wade,
Drew had one year,
his
after
§ 2254
(W.D. Va. Feb. 14, 2013)
bring
to
No.
until
statute
of
Drew
327 F.3d
or until February of
relief.
the
2013
demonstrates
more
Because
than
limitations
entitlement
Drew
ten
(10)
bars
the
to
some
later commencement date or equitable tolling.
Neither Drew nor
the
warrant
record
suggests
commencement
Accordingly,
of
the
any
circumstances
limitation
that
period
the Motion to Dismiss
or
equitable
a
later
tolling.
(ECF No. 15) will be granted.
The petition for a writ of habeas corpus will be denied and the
action
will
be
dismissed.
Drew's
Motion
for
an
Evidentiary
Hearing (ECF No. 19), Motion to Strike (ECF No. 20), two Motions
for
Sanctions
(ECF
Nos.
21,
22),
and
Motion
for
Rehearing
En
Banc6 (ECF No. 25) will be denied.
6 In the Motion for Rehearing En Banc,
the
Court
revisit
the
December
21,
2012
Drew requests that
Memorandum Order
which
An appeal may not be taken from the final order in a § 2254
proceeding unless
("COA") .
28
a judge issues a certificate of appealability
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. § 2253(c)(2).
requirement
debate
whether
(or,
should
have
issues
presented
been
proceed further.'"
for
that
resolved
were
only when
fails
to
matter,
in
a
^adequate
meet
this
agree
different
to
Slack v. McDaniel,
(quoting Barefoot v. Estelle,
Drew
"reasonable
jurists
that)
the
manner
or
deserve
529 U.S.
463 U.S.
A petitioner
A
petition
that
the
encouragement
473,
484
880, 893 & n.4
standard.
could
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 Drew and counsel for Respondent.
Robert E.
/s/
Payne
/£*/
Senior United States District Judge
Richmond, Virginia
°ate: ^'*,^
denied Drew's Motion for Summary Judgment and Motion
Temporary Restraining Order.
(Mot. Reh'g En Banc 1-2.)
for
a
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