Nelson v. Watson
Filing
18
MEMORANDUM OPINION. Signed by Magistrate Judge M. Hannah Lauck on 7/29/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ALPHONSO R. NELSON,
Petitioner,
v.
Civil Action No. 3:12CV388
B.B. WATSON,
Respondent.
MEMORANDUM OPINION
PetitionerAlphonso R. Nelson, a Virginiastate inmate proceedingpro se, brings this
petition for a writ ofhabeas corpus ("§ 2254 Petition") pursuant to 28 U.S.C. §2254.1 (ECF
No. 1.) Respondent filed a Motion to Dismiss (ECF No. 10) and Rule 5 Answer (ECF No. 11),
providing Nelson with appropriate Roseboro2 notice (ECF No. 13). Respondent contends, inter
alia, that the statute oflimitations bars this action.3 (Resp't's Br. Supp. Mot. Dismiss and Rule 5
Answer 4, ECF No. 12.) Nelson responded. (ECF No. 16.) The matter is ripe for disposition.
Jurisdiction exists under 28 U.S.C. §§ 636(c) and 2254. For the reasons that follow, the Court
will GRANT Respondent's Motion to Dismiss. (ECF No. 10.)
128 U.S.C. § 2254(a) states in relevant part:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).
2Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
3Respondent also argues thatNelson procedurally defaulted his claims and thathis
claims lack merit. (Resp't's Br. Supp. Mot. Dismiss and Rule 5 Answer 4.) Because the Court
finds that the statute of limitations bars this action, the Court need not consider Respondent's
alternative arguments.
I. Procedural History
A.
Nelson's Sentencing and Direct Appeal
On March 1, 2001, a jury in the Circuit Court of the City of Fredericksburg, Virginia
("Circuit Court") found Nelson guilty of first degree murder and use of a firearm in the
commission of murder. Commonwealth v. Nelson, Nos. CR2000-534 and CR2000-535, at 2 (Va.
Cir. Ct. Mar. 5,2001.) By order entered August 13, 2001, the Circuit Court sentenced Nelson to
life in prison as to Count One and three years as to Count Two. Commonwealth v. Nelson, Nos.
CR2000-534 and CR2000-535, at 3-5 (Va. Cir. Ct. Aug. 13, 2001).
On January 25, 2002, the Court of Appeals of Virginia ("Court of Appeals") dismissed
Nelson's appeal for failure to timely file his notice of appeal with the Circuit Court. Nelson v.
Commonwealth, No. 0129-02-2, at 1 (Va. Ct. App. Jan. 25, 2002). Nelson then filed a habeas
corpus petition in the Circuit Court seeking a delayed appeal.4 On December 17, 2002, the Court
of Appeals granted Nelson leave to apply for a delayed appeal. Commonwealth v. Nelson, No.
CL02-173, at 1 (Va. Ct. App. Dec. 17, 2002).
On May 18, 2004, the Court of Appeals affirmed Nelson's convictions. Nelson v.
Commonwealth, No. 3408-02-2, at 1 (Va. Ct. App. May 18, 2004). On September 29, 2004, the
Supreme Court of Virginia refused his petition for appeal. Nelson v. Commonwealth,
No. 041413, at 1 (Va. Sept. 29, 2004). Nelson sought no review from the Supreme Court of the
United States.
4Because the statute of limitations commenced afterNelson filed his habeas petition in
the Circuit Court, this 2002 petition fails to impact the statute of limitations analysis for his
§ 2254 Petition. See Jimenez v. Quarterman, 555 U.S. 113,121 (2009).
2
B.
Nelson's State Habeas Petition
More than six years later, on January24,2011, Nelson filed a petition for writ of habeas
corpus with the CircuitCourt. Petitionfor Writ of Habeas Corpus at 1, Nelson v. Watson, No.
CL11 -35 (Va. Cir. Ct. filed Jan. 24, 2011.) On March 9, 2011, the Circuit Court dismissed his
petition as not timely filed under section 8.01-654(A)(2) ofthe Virginia Code.5 Nelson v.
Watson, No. CLl 1-35 (Va. Cir. Ct. Mar. 9, 2011). Nelson subsequently noted an appeal. Notice
of Appeal at 1,Nelson v. Watson, No. CLl 1-35 (Va. Cir. Ct. filed Apr. 13, 2011.) The Supreme
Court of Virginia dismissed the appeal, finding that it "was not perfected in the manner provided
by law because [Nelson] failed to timely file the notice of appeal," under Virginia Supreme
Court Rule 5:9(a).6 Nelson v. Watson, No. 111074, at 1(Va. Feb. 2, 2012).
5This section provides thata habeas petitioner must file his state petition within two
years from the date of final judgment in the state trial court or one year from the date of the final
disposition of the direct appeal in state court, whichever is later. See Hines v. Kuplinski, 591
S.E.2d 692, 693 (2004). The Supreme Court of Virginia refused Nelson's petition for appeal on
September 29, 2004. He therefore had until September29, 2005 to file his petition in state court,
but did not do so until five years and four months after that date.
6This rule provides:
No appeal shall be allowed unless, within 30 days after the entry of final
judgment or other appealable order or decree, or within any specified extension
thereof granted by this Court pursuant to Rule 5:5(a), counsel for the appellant
files with the clerk of the trial court a notice of appeal and at the same time mails
or delivers a copy of such notice to all opposing counsel. A notice of appeal filed
after the court announces a decision or ruling—but before the entry of such
judgment or order—is treated as filed on the date of and after the entry.
Va. Sup. Ct. R. 5:9(a).
C.
Nelson's § 2254 Petition
On April 28, 2012, Nelson filed his §2254 Petition.7 (§ 2254 Pet. 1)8 Nelson raises four
grounds for relief:
1. The Commonwealth violated Nelson's Fifth9 and Fourteenth10 Amendment rights to
dueprocess when the Commonwealth knowingly used perjured testimony from five
different witnesses. (Mem. Law Supp. § 2254 Pet. 8.)
2. The Commonwealth and Fredericksburg Police Department violated Nelson's
Fifth and Fourteenth Amendment rights to due process when they relinquished
exculpatory evidence that would have exoneratedNelson. (Id.)
3. The Circuit Court of the City of Fredericksburg violated Nelson's Fifth and
Fourteenth Amendment rights to due process by convicting Nelson without
subject matter jurisdiction. (Id.)
4. The Supreme Court of Virginia erred by denying the appeal of Nelson's habeas
corpus petition. (Id. at 9.)
II. The Applicable Constraints Upon Federal Habeas Review
In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that
he or she is "in custody in violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). Thus, "claims of error occurring in a state post-conviction proceeding
cannot serve as a basis for a federal habeas corpus relief." Bryant v. Maryland, 848 F.2d 492,
493 (4th Cir. 1988) (citing cases). Such claims provide no basis because the habeas petitioner's
7The Court deems the § 2254 Petition filed on the date Nelson swears he placed the
petition in the prison mailing system. See Houston v. Lack, 487 U.S. 266, 276 (1988).
8The Court refers to the pages ofthis document as numbered by the CM/ECF docketing
system.
9"No person shall be ... deprived of life, liberty, or property, without due process of
law
" U.S. Const, amend. V.
10 "No State shall... deprive any person of life, liberty, or property, without due process
of law
" U.S. Const, amend. XIV, § 1.
11 The Court refers to the pages of this document as numbered by the CM/ECF docketing
system.
detention results from the underlying state conviction, not the state collateral proceeding.
Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008). ("[E]ven where there is some error in
state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the
assignment of error relating to those post-conviction proceedings represents an attack on a
proceeding collateral to detention and not to the detention itself." (citing Bryant, 848 F.2d at
493)). Because Nelson's fourth claim merely complains of error in the state post-conviction
proceedings, that claim fails to provide a cognizable basis for federal habeas corpus relief.
Accordingly, Claim 4 will be DISMISSED.
HI. Analysis of the Motion to Dismiss
A.
Statute of Limitations
Under federal law, state prisoners filing a writ for habeas corpus must abide by a one-
year limitation period. Specifically, 28 U.S.C. § 2244(d) states:
(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).
Pursuant to 28 U.S.C. § 2244(d)(1)(A), Nelson's judgment became final on Tuesday,
December 28, 2004, the last day to file a petition for certiorari in the Supreme Court of the
United States. 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 § 2244(d)(1)(A))); 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). Thus, under § 2244(d)(1)(A), Nelson had one
year, or until Wednesday, December 28, 2005 to file a federal habeas corpus petition challenging
his conviction or sentence. He failed to file his § 2254 Petition until April 28, 2012,
approximately six years and four months beyond the limitation period. Unless Nelson's claim
qualifies for tolling of the limitation period, he has failed to timely file his § 2254 Petition.
B.
Nelson's §2254 Petition Receives No Statutory Tolling of the Limitation
Period
To qualify for statutory tolling, an action must be a (1) properly filed (2) post-conviction
or other collateral review of (3) the pertinent judgment. 28 U.S.C. § 2244(d)(2). "[A]n
application is ''properly filed' when its delivery and acceptance are in compliance 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 of the document, the time limits upon its
delivery, the court and the office in which it must be lodged, and the requisite filing fee." Id.
(footnote omitted). A petition that a state court denies as untimely fails to qualify as "properly
filed" within the meaning of the Antiterrorism and Effective Death Penalty Act. Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005).
Nelson filed a petition for writ of habeas corpus in the Circuit Court and an appeal to the
Supreme Court of Virginia, but his claims fail to qualify for statutorytolling. First, because
Nelson filed his petition after the federal statute of limitations had expired, no period to toll
existed.12 Deville v. Johnson, No. 1:09cv72(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)). Second, the Circuit
Court denied Nelson's petition as untimely, and the Supreme Court of Virginia denied his appeal
as untimely. Thus, Nelson's petition and appeal fail to qualify as "properly filed" applications
for post-conviction relief and fail to warrant a period of statutory tolling. Pace, 544 U.S. at 413;
Artuz, 531 U.S. at 8-9.
Nelson filed his § 2254 Petition on April 28, 2012, six years and four months after the
limitation period expired. Because Nelson failed to file his § 2254 Petition within one year, the
statute of limitations bars his § 2254 Petition unless he can demonstrate entitlement to belated
commencement or equitable tolling. Nelson argues his actual innocence entitles him to equitable
tolling. This argument falls short because Nelson provides no new, reliable evidence and fails to
establish his claim of actual innocence.
C.
Nelson's Petition Receives No Equitable Tolling of the Limitation Period
1.
Applicable Law
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." Holland v. Florida,
12 Nelson filed his petition in theCircuit Court onJanuary 24, 2011, more than five years
beyond the December 27, 2005 deadline.
130 S. Ct. 2549, 2562 (2010) (quoting Pace, 544 U.S. at 418). A petitioner asserting equitable
tolling "'bears a strong burdento show specific facts'" to demonstrate that he or she 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)).
Nelson claims his actual innocence justifies his delayed petition. The Supreme Court has
recognized actual innocence as a basis for tolling the statute of limitations. See McQuiggin v.
Perkins, 133 S. Ct. 1924,1928 (2013) (explaining that "actual innocence, if proved, serves as a
gateway through which a petitioner may pass whether the impediment is a procedural bar ...
or... expiration of the statute of limitations").
"Claims of actual innocence, whether presented as freestanding ones or merely as
gateways to excuse a procedural default, should not be granted casually." Wilson v. Greene, 155
F.3d 396, 404 (4th Cir. 1998) (citations omitted). Here, the Court reviews Nelson's arguments
under the more lenient standard for gateway actual innocence claims, because subscribing to
Nelson's actual innocence claims would permit the Court to consider the merits of his otherwise
time-barred habeas petition. A gateway claim requires "new reliable evidence - whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). "Because such
evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are
rarely successful." Id.
If a petitioner meets the burden of producing new, truly reliable evidence of his or her
innocence, the Court then considers "'all the evidence,' old and new, incriminating and
exculpatory, without regard to whether it would necessarily be admitted under 'rules of
admissibility that would govern at trial'" and determines whether the petitioner has met the
8
standard for a gateway claim of innocence. House v. Bell, 547 U.S. 518, 538 (2006) (quoting
Schlup, 513 U.S. at 327-28). The Court must determine "whether 'it is more likely than not that
no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Sharpe v.
Bell, 593 F.3d 372, 377 (4th Cir. 2010) (quoting Schlup, 513 U.S. at 327-28). "The Court need
not proceed to this second step of the inquiry unless the petitioner first supports his or her claim
with evidence of the requisite quality." Hill v. Johnson, No. 3:09cv659,2010 WL 5476755, at
*5 (E.D.Va. Dec. 30, 2010) (citing Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997);
Feaster v. Beshears, 56 F. Supp. 2d 600, 610 (D. Md. 1999)).
2.
Nelson Fails to Provide New Reliable Evidence
Nelson presents two arguments to support his actual innocence claim. First, Nelson
asserts that the "alibi evidence petitioner's defense witness presented at trial negates all physical
possibility that the petitioner had committed any crime." (Mem. Supp. § 2254 Pet. 7-8.) Nelson
claims he was in New York at the time of the murder, and he produced a witness who testified to
that effect. Nelson already presented this alibi evidence at trial through the testimony of Alaya
Frederick.13 He cannot claim it as "newevidence" to support his actual innocence claim. See
Schlup, 513 U.S. at 324 (explaining that, to be credible, an actual innocence claim requires a
petitioner to support his allegations of constitutional error with "new reliable evidence ... that
was not presented at trial").
Second, Nelson avers that the Commonwealth's Attorney and Fredericksburg Police
Department failed to preserve evidence "which possessed exculpatory value that was apparent
before the evidence was surrendered . .. without further testing of the weapon for any
13 Alaya Frederick supplied Nelson's alibi defense at trial. She testified that she lived
with Nelson in New York (Trial Tr. vol. VI, 94:18-95:10, 96:13-15), and that Nelson never left
New York in December of 1999 (id. at 98:6-7, 100:13-19), thus, making it impossible for
Nelson to have committed the shooting in Virginia during that month.
fingerprints or other DNA evidence, which would prove petitioner's actual innocence." (Mem.
Supp. § 2254 Pet. 10 (capitalization corrected).) Nelson suggests that the absence of his DNA,
or the presence of someone else's DNA, on the murder weapon would exonerate him. Nelson's
mere allegation of the existence of new evidence falls short of the burden of presenting "new
reliable evidence" of his actual evidence. See Weeks, 119 F.3d at 1351-52 (explaining that
allegations of evidence without "substance" prove insufficient to satisfy the requirement of "new
reliable evidence"). Nelson's bare, conclusory assertion absent the upshot of any actual evidence
gleaned from testing the weapon fails to invoke the actual innocence exception. Nelson's alibi
evidence and allegations of exculpatory evidence do not qualify as "new reliable evidence."
Thus, the Court need not proceed to the second step of the actual innocence inquiry.
3.
Even Assuming That Nelson Could Meet the First Prong of Actual
Innocence Inquiry. He Fails to Establish Actual Innocence
Even considering Nelson's previously presented alibi evidence and new allegations about
the untested firearm as "new evidence," Nelson falls far short of meeting his burden of
demonstrating actual innocence. He fails to show that '"it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Sharpe, 593
F.3d at 377 (quoting Schlup, 513 U.S. at 327-28). The Virginia Court of Appeals aptly
summarized the overwhelming evidence of Nelson's guilt as follows:
[T]he evidence proved Leslie Camp stood with Solomon Alexander near
Alexander's car and discussed Camp's pregnancy and names for the baby. Camp
previously had had a romantic relationship with Alexander. Charles Satterfield,
Camp's fiance, was standing near the door of Camp's residence. When
Satterfield and Alexander exchanged angry words regarding the naming of the
baby, Alexander displayed a small handgun. Appellant then exited Alexander's
car and fired a rifle four or five times. Camp ran to a neighbor's house. When
she returned a few minutes later, appellant, Alexander, and Alexander's car were
gone. Satterfield had suffered five gunshot wounds and was dead.
Camp testified she had a clear view of appellant's face at the time of the
shooting and she was sure he was the person who shot Satterfield. Although she
10
did not know appellant before the incident, Camp learned appellant's name from
Alexander's mother on the night of the shooting.
Bobby Ratley was a passenger in Alexander's vehicle when Satterfield
was shot. Ratley testified that appellant exited the vehicle, pointed a rifle at
Satterfield, and fired it several times. After the shooting, appellant, Alexander,
and Ratley fled to Ratley's mother's apartment in New York. Appellant was
arrested in New York.
Detective Doug Perkins recovered a .30-30 caliber bullet and cartridge
casings from the crime scene. A .30-30 bullet was taken from Satterfield's body
during the autopsy. Forensic evidence proved that all of the .30-30 bullets and
cartridge casings recovered by the police were fired from a .30-30 Winchester
rifle the New York police seized from Ratley's mother's apartment.
Alexander's mother testified that her son, appellant, and Bobby Ratley,
stayed at her Stafford home for a period of time in December of 1999. Appellant,
however, told the police he had not been in Virginia in December of 1999. The
evidence also proved appellant's fingerprints were on the passenger side window
of Alexander's vehicle.
Nelson v. Commonwealth, No. 3408-02-2, at 3-4 (Va. Ct. App. July 11, 2003).
Considering all of the evidence, old and new, Nelson fails to demonstrate that '"it is more
likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt.'" Sharpe, 593 F.3d at 377 (quoting Schlup, 513 U.S. at 327-28). In sum, Nelson's "new
evidence" consists of an already rejected alibi and the bald assertion that testing the murder
weapon for physical evidence might exonerate him. Neither piece of evidence carries significant
exculpatory value.
As to the alibi, Alaya Frederick may have testified Nelson never left New York in
December of 1999, but Linda Alexander, who is Solomon Alexander's mother and Nelson's
second cousin, testified that Nelson stayed at her home in Stafford, Virginia around the time of
the murder. (Trial Tr. vol. V, 356:20-357:20; vol. VI, 17:1-19:11.)14 Nelson's own family
member refuted the notion that Nelson never left New York in December of 1999. (Trial Tr. vol.
14 Linda Alexander testified thatNelson, Bobby Ratley, and her son, Solomon Alexander,
visited her at her Stafford, Virginia home for approximately three days around or before
December 10, 1999. (Trial Tr. vol. VI, 17:1-19:11).
11
VI, 17:1-19:11.) Also, two eyewitnesses, Leslie Camp (Trial Tr. vol. V, 175:9-176:18), and
Bobby Ratley (Trial Tr. vol. VI, 30:8-15,42:21-44:13), unequivocally identified Nelson as the
shooter. Ratley testified that after the shooting, he, Solomon Alexander, and Nelson all fled to
Ratley's grandmother's house in New York (Id. 44:13-46:20), where Detective Kenneth Cetin of
the New York City Police Department later recovered the murder weapon (Trial Tr. vol. V,
334:3-336:21). Nelson has put forth no evidence suggesting that these witnesses testified falsely
or had a motive to do so.
As to any exculpatory evidence, Nelson speculates that further testing of the murder
weapon would undoubtedly prove his innocence. However, the potential absence or presence of
Nelson's DNA on the weapon, weighed against the compelling evidence of his guilt, fails to
demonstrate Nelson's innocence. Multiple eyewitnesses identified Nelson as the shooter. The
police recovered the murder weapon from the apartment Nelson fled to after the shooting. The
alibi testimony and Nelson's specultation about DNA test results have little, to no, exculpatory
value.
Nelson cannot meet his burden of demonstrating actual innocence. Therefore, he fails to
establish that his alleged actual innocence permits the Court to reach the merits of his timebarred § 2254 Petition.
IV. Conclusion
For the foregoing reasons, the Court finds Nelson's § 2254 Petition barred by the statute
of limitations. Accordingly, the Respondent's Motion to Dismiss (ECF No. 10) will be
GRANTED, Nelson's claims will be DISMISSED, Nelson's § 2254 Petition will be DENIED,
and the action will be DISMISSED.
12
A petitioner may not appeal 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 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)). No law or evidence suggests that Nelson is entitled to further consideration in this
matter. A COA will therefore be DENIED.
An appropriate Order shall issue.
/s/
a^L^
M. Hannah Le
United States Magistrate Judge
Richmond,| Virginia
ona,i Virginia
Date:
13
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