Houck v. Clarke
Filing
14
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 6/22/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
HENRY ALEXANDER HOUCK,
Petitioner,
v.
Civil Action No. 3:12CV26
HAROLD W. CLARKE,
Respondent.
MEMORANDUM OPINION
Henry Alexander Houck, a Virginia state prisoner proceeding pro se, brings this petition
pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition")1 challenging his convictions in the Circuit
Court for the County of Chesterfield, Virginia ("Circuit Court"). Respondent moves to dismiss,
inter alia, on the ground that the one-year statute of limitations governing federal habeas
petitions bars the § 2254 Petition. Houck has responded; the matter is ripe for disposition. Since
Houck has failed to meet the one-year deadline and he cannot demonstrate entitlement to
equitable tolling or a belated commencement of the statute of limitations, his petition must be
dismissed.
L PROCEDURAL HISTORY
Houck pled guilty in the Circuit Court to two counts of robbery, one count of conspiracy
to commit robbery, and one count of use of a firearm during a robbery. Commonwealth v.
Houck, No. CR09F00510, at 1 (Va. Cir. Ct. June 29, 2009). On September 14, 2009, the Circuit
Along with the § 2254 Petition, Houck filed a supporting memorandum ("Memorandum
in Support" (Docket No. 2)). Citations to the Memorandum in Support will refer to the pages
assigned by the Court's CM/ECF system at the time of the document's filing.
Court sentenced Houck to an active term of incarceration of eleven years and twelve months.
Commonwealth v. Houck, No. CR09F00510, at 2 (Va. Cir. Ct. Sept. 14, 2009). Houck did not
appeal. {See § 2254 Pet. 3.)
On March 28, 2011, Houck filed a petition for a writ of habeas corpus directed to the
Supreme Court of Virginia ("State Habeas Petition"). On October 12, 2011, the Supreme Court
of Virginia dismissed the petition. Houck v. Dir., Dep't Corr., No. 110670, at 4 (Va. Oct. 12,
2011). On January 6, 2012, Houck filed the instant § 2254 Petition in this Court.3 In his § 2254
Petition, Houck makes the following claims:
Claim One
"That the police did not have probable cause or a warrant at the
time that they entered the Petitioner's house." (Mem. Supp.
§ 2254 Pet. 3.)
Claim Two
"The Petitioner argues that his Court Appointed Counsel was
ineffective performing his duties as he was assigned to do by law
and under the Constitution of the United States."4 (Id. at 7
(emphasis omitted).)
II. ANALYSIS
A. Statute of Limitations
Respondent contends that the federal statute of limitations bars Houck's claims. 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:
2 Though functionally equivalent to a twelve-year sentence, the Circuit Court stated
Houck's sentence in this precise manner, reflecting Virginia courts' standard practice.
3This is the date Houck swears he placed the § 2254 Petition in the mail and, hence, the
date this Court deems it filed. See Houston v. Lack, 487 U.S. 266, 276 (1988).
4 "In all criminal prosecutions, the accused shall enjoy the right ... to have the
Assistance of Counsel for his defence." U.S. Const, amend. VI.
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)
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
Houck's judgment became final for the purposes of the AEDPA on Wednesday, October
14, 2009, the last day to file a notice of appeal in the Circuit Court. 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 (West 2009) ("No appeal shall be
allowed unless, within 30 days after entry of final judgment. .. counsel files with the clerk of the
trial court a notice of appeal. . . ."). Accordingly, Houck had one year, or until Friday, October
14, 2010, to file a petition pursuant to 28 U.S.C. § 2254. Houck did not file his § 2254 Petition
until January 6, 2012.
Accordingly, unless Houck demonstrates that entitlement to belated
commencement or equitable tolling, the statute of limitations will bar his claims.5
C. Belated Commencement
Houck asserts that his judgment did not become final, and thus the AEDPA's one-year
statute of limitations did not begin to run, until the date the Supreme Court of Virginia dismissed
the State Habeas Petition. (Br. Opp'n Mot. Dismiss 8.) Houck is mistaken. The statute of
limitations on a § 2254 petition begins to run on "the date on which the judgment [becomes]
final by the conclusion of direct review or the expiration of the time for seeking such
review...." 28 U.S.C. § 2244(d)(1)(A) (emphasis added).
Houck did not file any direct appeal of his Circuit Court conviction. Accordingly, his
conviction became final when the time to seek direct appeal expired. Hill, 277 F.3d at 704.
Houck's opportunity to seek direct review of his conviction in the Court of Appeals of Virginia
expired thirty days after the Circuit Court entered judgment. Va. Sup. Ct. R. 5A:6 (West 2009).
Thus, Houck's conviction became final for the purposes of the AEDPA on Wednesday, October
14, 2009, not after the Supreme Court of Virginia dismissed his State Habeas Petition.6 Houck
does not assert any other grounds for a belated commencement of the statute of limitations.
Accordingly, Houck is not entitled to a belated commencement of the statute of limitations.
5The State Habeas Petition did not entitle Houck to statutory tolling because the statute
of limitations expired prior to Houck's filing of the State Habeas Petition. 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)).
A petition for a writ of habeas corpus is a form of collateral review, not direct review.
See Mironescu v. Costner, 480 F.3d 664, 665 (4th Cir. 2007) (citing Peroffv. Hylton, 563 F.2d
1099, 1102 (4th Cir. 1977)).
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 v. DiGuglielmo, 544 U.S. 408,418 (2005)). An inmate asserting equitable
tolling "'bears a strong burden to show specific facts'" which demonstrate that 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)).
Houck does not attempt to explain why he should be entitled to equitable tolling.
Accordingly, Houck is not entitled to equitable tolling. Because Houck cannot demonstrate any
meritorious grounds for belated commencement or equitable tolling, the § 2254 Petition will be
DENIED as untimely.
III. CONCLUSION
For the foregoing reasons, Respondent's Motion to Dismiss (Docket No. 9) will be
GRANTED. Houck'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 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." 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 '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)).
Houck fails to meet this standard. Accordingly, a certificate of appealability will be DENIED.
An appropriate Order shall issue.
/S/
JohnA.Gibney,Jry
Date: June 22,2012
Richmond, Virginia
United StatesDistticfJjhdge
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