Villafana v. Commonwealth of Virginia
Filing
15
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 12/28/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JACQUES PAUL VILLAFANA,
Petitioner,
v.
Civil Action No. 3:12CV141
COMMONWEALTH OF VIRGINIA,
Respondent.
MEMORANDUM OPINION
Jacques Paul Villafana, a Virginia state prisoner proceeding pro se, brings this petition
pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his convictions in the Circuit Court
for the City of Virginia Beach, Virginia ("Virginia Beach 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. Villafana has responded. The matter is ripe for disposition.
I. PROCEDURAL HISTORY
A jury sitting in the Circuit Court found Villafana guilty of armed burglary, malicious
wounding, and two counts of use of a firearm in relation to those felonies. On September 15,
2005, the Virginia Beach Circuit Court entered final judgment with respect to the above
convictions. Commonwealth v. Villafana, No. CR04-834, at 2 (Va. Cir. Ct. Sept. 15, 2005).
Villafana appealed his convictions. On May 29, 2007, the Supreme Court of Virginia refused
Villafana's petition for appeal. Villafana v. Commonwealth, No. 070207, at 1 (Va.
May 9, 2007).
On September 6, 2011, Villafana filed a state petition for a writ of habeas corpus ("First
State Habeas Petition") with the Circuit Court for the County of Brunswick, Virginia
("Brunswick Circuit Court"). See Villafana v. Commonwealth, No. 11-132, f 3 (Va. Cir. Ct.
Oct. 27, 2011). On October 27, 2011, the Brunswick Circuit Court dismissed the petition
because Villafana filed the petition in the wrong jurisdiction. Id. H4. Specifically, that court
stated:
This Court does not have jurisdiction to consider or grant habeas relief as
Villafana was convicted in the Circuit Court of the City of Virginia Beach, not the
Circuit Court of Brunswick County. Virginia Code § 8.01-654(B)(1)[1] requires
that a habeas petition be filed in the circuit court that entered the judgment order
of conviction. As Villafana was convicted in the Circuit Court of the City of
Virginia Beach, jurisdiction does not lie in this Court.
Id
Thereafter, on November 14, 2011, Villafana filed a petition for a writ of habeas corpus
("Second State Habeas Petition") with the Virginia Beach Circuit Court. Villafana v.
Commonwealth, No. CL 11-6838, f 3 (Va. Cir. Ct. Jan. 5, 2012). On January 5,2012, the
Virginia Beach Circuit Court denied the petition on the grounds that the relevant statute of
limitations barred the petition. Id. U4 {citing Va. Code 8.01-654(A)(2)).2 Villafana did not
appeal.
1"With respect to any such petition filed by a petitioner held under criminal
process ... only the circuit court which entered the original judgment order of conviction or
convictions complained of in the petition shall have authority to issue writs of habeas corpus."
Va. Code Ann. § 8.01-654(B)(1) (West 2012).
2That statute states in relevant part:
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).
On February 3,2012, Villafana filed his §2254 Petition with this Court.3 In his § 2254
Petition, Villafana asserts:
Claim One
Trial counsel rendered ineffective assistance by failing to argue for
suppression of Villafana's statements as a violation his rights under
Miranda atthe suppression hearing.4
Claim Two
Villafana's conviction was "obtained by a violation of the privilege
against self-incrimination." (§ 2254 Pet. 5.)
II. ANALYSIS
A. Statute of Limitations
Respondent contends that the federal statute of limitations bars Villafana's claims.
Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28
U.S.C. § 2244to establish a one-yearperiod of limitation for the filing of a petition for a writ of
habeas corpus by a person in custody pursuant to thejudgment of a statecourt. 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
3This is the date Villafana dated the Memorandum of Law in Support that accompanied
his § 2254 Petition. (Mem. Supp. § 2254 Pet. 10.) Accordingly, the Court deems this the date
Villafanaplaced the § 2254 Petition in the prison mailing system and, hence, the date this Court
deems it filed. See Houston v. Lack, 487 U.S. 266, 276 (1988).
4Miranda v. Arizona, 384U.S. 436 (1966).
3
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 and Running of the Statute of Limitations
Villafana's judgment became final on Monday, August 27, 2007, when the time to file a
petition for a writ of certiorari expired. See Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002)
("[T]he one-year limitation period beginsrunning when directreviewofthe state conviction is
completed or when the time for seeking direct review has expired ...." (citing 28 U.S.C.
§ 2244(d)(1)(A))); Sup. Ct. R. 13(1) (requiring that a petition for certiorari shouldbe filed within
ninety days of entryof judgmentby state court of last resort or of the order denying discretionary
review). Here, the limitation periodran for more than four years and five months before
Villafana filed his § 2254 Petition.5 Hence, the statute oflimitations bars the present action
unless Villafana demonstrates entitlement to statutory tolling under § 2244(d)(2), belated
commencement pursuant to § 2244(d)(l)(B)-(D)>or equitable tolling. Neither Villafana nor the
record suggests circumstances that would warrant a belated commencement under
§ 2244(d)(l)(BHD) or equitable tolling.
Furthermore, Villafana's two state habeas petitions fail to qualify for statutory tolling
under § 2244(d)(2). First, the limitation period expired before Villafana filed his state habeas
petitions, so no limitationperiod remained for tolling. See Deville v. Johnson, No. 1:09cv72,
The statute of limitations expired on Wednesday, August 27, 2008.
4
2010 WL 148148, at *2 (E.D. Va. Jan. 12,2010) (citing Webster v. Moore, 199 F.3d 1256,1259
(11th Cir. 2000)). Second, Villafana failed to properly file either petition. "[A]n application is
'properly filed' when its delivery and acceptance are incompliance with 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 ofthe document, the time limits upon its delivery, the court and
office in which itmust be lodged, and the requisite filing fee." Id (emphasis added) (footnote
omitted) (citations omitted). Villafana filed his FirstState Habeas Petition in the wrong court.
Thus, he failed to properly file thatpetition. Id. Villafana failed to properly file his Second State
Habeas Petition because the state statute of limitations barred that petition. See Pace v.
DiGuglielmo, 544 U.S. 408,417 (2005).
III. CONCLUSION
Forthe foregoing reasons, Respondent's Motion to Dismiss (Docket No. 5) will be
GRANTED. Villafana's petition for reliefunder 28 U.S.C. § 2254 will be DENIED. Theaction
will be DISMISSED.6
An appropriate Order shall issue.
Date:
Richmond, Virginia
James R. Spencer
United States Distrirf. i, fdge
6An appeal may notbetaken 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 thatmatter, agree that) the petition should have beenresolved 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)).
Villafana fails to meet this standard. Accordingly, a certificate of appealabilitywill be DENIED.
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