Adkins v. Virginia Department of Corrections et al
Filing
11
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 8/7/13. Copy sent: Yes(tdai, )
Adkins v. Virginia Department of Corrections et al
Doc. 11
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
DEMARIO RAMONE ADKINS,
Petitioner,
Civil Action No. 3:12CV594-HEH
v.
VIRGINIA DEPARTMENT OF
CORRECTIONS,^/.,
Respondents.
MEMORANDUM OPINION
(Denying 28 U.S.C. § 2254 Petition)
Demario Adkins, a former 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 of the City of Richmond ("Circuit Court"). Respondent1 moves to
dismiss on the grounds that, inter alia, the one-year statute of limitations governing
federal habeas petitions bars the § 2254 Petition. Respondent provided Adkins with
appropriate Roseboro notice.2 (ECF No. 6.) Adkins has not responded. The matter is
ripe for disposition.
1Adkins names both the Virginia Department ofCorrections ("VDOC") and SheriffC.T.
Woody as defendants. The Office of the Attorney General responded only on behalf of the
VDOC. Because Adkins's petition will be dismissed as untimely filed, the Court need not
further inquire into the Attorney General's lack of response for Woody.
2See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
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I. PROCEDURAL HISTORY
A.
Original Conviction and Appeal
The Circuit Court convicted Adkins of carrying a concealed weapon and by order
entered May 24,2007, sentenced him to five years in prison with all but two months of
the sentence suspended. Commonwealth v. Adkins, No. CR07-F-106, at 1-2 (Va. Cir.
Ct. May 24, 2007). Adkins noted an appeal. On August 30, 2007, the Court of Appeals
of Virginia dismissed Adkins's appeal because counsel failed to submit a transcript or a
statement of facts. Adkins v. Commonwealth, No. 1093-07-2, at 1 (Va. Ct. App. Aug.
30, 2007).
B.
State Habeas
On December 12, 2008, Adkins, by counsel, filed a petition for a writ of habeas
corpus in the Circuit Court. Petition for Habeas Corpus Relief at I, Adkins v. Woody, No.
CL08-5667 (Va. Cir. Ct. filed Dec. 12, 2008). On January 9, 2009, the Circuit Court
dismissed Adkins's habeas petition because Adkins "[was] not currently being detained
by the State." Adkins v. Woody, No. CL08-5667, at 1-2 (Va. Cir. Ct. Jan. 9, 2009).
C
§ 2254 Petition
On August 17, 2012, Adkins filed his § 2254 Petition with this Court. (§ 2254
Pet. I.)3 In the §2254 Petition, Adkins makes the following claims for relief:
Claim One
"Right of appeal was denied at no fault of defendant."
(Id. at 6 (capitalization and spelling corrected).)
3Because Adkins was not incarcerated atthe time he submitted his § 2254 Petition, the
§ 2254 Petition is filed as of the date the Court received it. Cf. Houston v. Lack, 487 U.S. 266,
276 (1988) (explainingthat the Court deems petition filed as of date inmate places in the prison
mailing system).
Claim Two
"Wanted to appeal conviction of concealed weapon."
(Id. at 7 (capitalization and spelling corrected).)
II. STATUTE OF LIMITATIONS
Section 101 of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") amended 28 U.S.C. § 2244 to establish a one-year limitations period 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;
(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).
A.
Commencement of the Statute of Limitations
Adkins's judgment became final for the purposes of the AEDPA on Monday
October 1, 2007, when the time for noting an appeal with the Supreme Court of Virginia
expired. 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
" 28 U.S.C. § 2244(d)(1)(A)); Va.
Sup. Ct. R. 5:14(a) (requiring notice of appeal to be filed thirty days after judgment of
Court of Appeals of Virginia). Thus, Adkins had one year, or until October 1, 2008, to
file a petition pursuant to 28 U.S.C. § 2254. Adkins filed this § 2254 Petition on August
12,2012.
B.
Belated Commencement of the Limitations Period
While Adkins provides no argument for belated commencement, the facts suggest
a belated commencement under § 2244(d)(1)(D) because he instructed counsel to file an
appeal and counsel failed to perfect the appeal. "A 1-year period of limitation shall apply
to an application for a writ of habeas corpus
" 28 U.S.C. § 2244(d)(1). "The
limitation period shall run from . . . the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of due diligence." 28
U.S.C. § 2244(d)(1)(D).
Whether a petitioner has exercised due diligence is a fact-specific inquiry unique
to each case. Wims v. UnitedStates, 225 F.3d 186, 190-91 (2d Cir. 2000). A petitioner
bears the burdento prove that he or she exercised due diligence. DiCenzi v. Rose, 452
F.3d 465, 471 (6th Cir. 2006). "'Due diligence ... does not require a prisoner to
undertake repeated exercises in futility or to exhaust every imaginable option.'" Anjulo-
Lopezv. United States, 541 F.3d 814, 818 (8th Cir. 2008) (quoting Aron v. United States,
291 F.3d 708, 712 (11th Cir. 2002)). Due diligence, however, "at least require[s] that a
prisoner make reasonable efforts to discoverthe facts supporting his claims." Id. (citing
Aron, 291 F.3d at 712). Moreover, in evaluating a petitioner's diligence, the Court must
be mindful that the "statute's clear policy calls for promptness." Johnson v. United
States, 544 U.S. 295, 311 (2005).
Once Adkins requested that counsel file an appeal, it was incumbent upon him to
demonstrate that he diligently followed up with his attorney regarding the status of that
appeal. See El-Abdu'llah v. Dir., Va. Dep't Corr., No. 3:07CV494, 2008 U.S. Dist.
LEXIS 43929, at *2-3 (E.D. Va. June 4, 2008). "[W]hen counsel's communications or
lack thereof indicate that something is amiss with a petitioner's appeal, due diligence
requires the petitioner to act on that information." Id. at *9 (citations omitted). The
Court of Appeals of Virginia dismissed Adkins's appeal on August 30,2007. Counsel's
failure to perfect the appeal was discoverable as of that date because the Court of Appeals
of Virginia's dismissal became part of the public record. Wade v. Robinson, 327 F.3d
328, 333 (4th Cir. 2003); see Green v. Johnson, 515 F.3d 290, 305 (4th Cir. 2008).
Although Adkins possessed the ability to discover his counsel's failure to appeal
on August 30, 2007, "to require that he do so ignores the reality of the prison system and
imposes an unreasonable burden on prisoners seeking to appeal." Granger v. Hurt, 90 F.
App'x 97, 100 (6th Cir. 2004) (citing Wims, 225 F.3d at 190 n.4). While no "magic
number" exists for the time afforded a reasonable prisoner to discover counsel failed to
file a promised appeal, a petitioner must offer some evidence that he acted with due
diligence. Ryan v. UnitedStates, 657 F.3d 604, 607-08 (7th Cir. 2011) (citing cases and
finding that "a reasonable prisoner may take at least two months ... to suspect that
counsel has dropped the ball, contact counsel or the court, wait for a response, and verify
the suspicion"); see Granger, 90 F. App'x at 100 (finding petitioner acted with due
diligence when he waited two months to inquire about requested appeal). However,
Adkins served only two months in prison. After his release, Adkins failed to face the
hurdles of an individual in the prison system in discovering the status of his appeal.
Under the present facts, due diligence required Adkins to follow up with counsel or the
Court of Appeals of Virginia at the latest within nine months of the date of his sentencing
about the status of his appeal. With minimal diligence, Adkins could have learned that
counsel failed to perfect his appeal by February 25, 2008. Thus, that date provides the
date for the commencement of the limitation period under 28 U.S.C. § 2244(d)(1)(D).
C.
Statutory Tolling
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 'properlyfiled' 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 office in which it must be
lodged, and the requisite filing fee." Id. (footnote omitted) (citations omitted). A petition
denied by a state court as untimely fails to qualify as "properly filed" within the meaning
of the AEDPA. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
Applying the entitlement to belated commencement previously discussed, the
statute of limitations ran for two hundred and ninety (290) days, from February 26, 2008
until December 12, 2008, when Adkins filed his petition for a writ of habeas corpus with
the Circuit Court. See 28 U.S.C. § 2244(d)(2). Assuming without deciding that Adkins
"properly filed" his state habeas petition,4 the limitations period remained tolled until the
Circuit Court dismissed his petition on January 9, 2009. The limitations period began to
run the following day, and the deadline for filing a § 2254 Petition expired on Thursday,
March 26,2009. Adkins failed to file his § 2254 Petition until August 17, 2012, nearly
three and a half years beyond the limitations period. Therefore, the statute of limitations
bars the action even with the benefit of the belated commencement date. Neither Adkins
nor the record suggest any plausible basis for equitable tolling.
4The Circuit Court dismissed Adkins's habeas petition as seeking relief unavailable to
Adkins because Adkins was no longer in custody. Thus, Adkins's state habeas may fail to
qualify as a properly filed application for the purposes of statutory tolling. The Court need not
decide that issue here as Adkins's § 2254 is barred by AEDPA's statute of limitations even with
the benefit of statutory tolling.
III.
CONCLUSION
Accordingly, Respondent's Motion to Dismiss (ECF No. 3)will be granted. The
petition for a writ of habeas corpus will be denied.
Adkins also has two pending motions. In his "Motion for resentencing for direct
appeal," Adkins "moves to have the case resentenced by the trial court to make a direct
appeal available." (ECF No. 10, at 1.) Adkins also filed a "Motion for Subpoena of
Records" from the VCU Police pertaining to his arrest. (ECF No. 8.) As Adkins's
§ 2254 Petition is barred from review here, Adkins's motions will denied.
The action will be dismissed. The Court denies a certificate ofappealability.5
An appropriate Order shall issue.
/s/
HENRY E. HUDSON
Date:fiu5 *7 2QI3
UNITED STATES DISTRICT JUDGE
Richmond^ Virginia
5An appeal may notbe 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 Barefootv. Estelle, 463 U.S. 880, 893 & n.4
(1983)). No law or evidence suggests that Adkins is entitled to further consideration in this
matter.
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