Tory v. United States District Court
Filing
14
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 10/22/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MICHAEL E. TORY, JR.,
Petitioner,
Civil Action No. 3:12CV905
v.
R.C. METHENA,
Respondent.
MEMORANDUM OPINION
Michael E. Tory, Jr., 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
of the City of Virginia Beach, 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. Respondent provided Tory with appropriate Roseboro1 notice. (ECF
No. 12.) Tory has not responded. The matter is ripe for disposition.
I. PROCEDURAL HISTORY
A grand jury indicted Tory on charges of use of a firearm in the commission of a felony,
malicious wounding, and aggravated malicious wounding. Indictment at 1, Commonwealth v.
Tory, Nos. AS1^1319-F9, ASL-1334-F3 (Va. Cir. Ct. Dec. 18, 2006); Indictment at 1,
No. ASL-1336-F2 (Va. Cir. Ct. Dec. 18, 2006). On February 27, 2007, Tory entered a guilty
plea with respect to the charges of use of a firearm in the commission of a felony and aggravated
malicious wounding. Commonwealth v. Tory, No. CR06-5067, at 1 (Va. Cir. Ct. Mar. 1, 2007).
On December 18,2007, the Circuit Court entered final judgment with respect to those
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
convictions and sentenced Tory to an active prison term of thirty-eight years. Commonwealth v.
Tory, No. CR 06-5067, at 1-2 (Va. Cir. Ct. Dec. 18, 2007). Tory did not appeal.
On December 26,2007, the Circuit Court received a Motion to Modify Sentence from
Tory. Motion to Modify Sentence at 1, Commonwealth v. Tory, No. CR 06-5067 (Va. Cir. Ct.
filed Dec. 26,2007). On January 7,2008, the Circuit Court denied Tory's Motion to Modify
Sentence. Commonwealth v. Tory, No. CR 06-5067 (Va. Cir. Ct. Jan. 7,2008).
On December 2,2009, Tory filed a Petition for a Writ of Habeas Corpus with the Circuit
Court. Petition for Writ of Habeas Corpus at 1, Tory v. Methena, No. CL09-7010 (Va. Cir. Ct.
filed Dec. 2, 2009). On March 19, 2010, the Circuit Court dismissed the petition. Tory v.
Methena, No. CL09-7010, at 6-7 (Va. Cir. Ct. Mar. 19,2010). Tory pursued an appeal to the
Supreme Court of Virginia. On September 29, 2010, the Supreme Court of Virginia refused
Tory's petition for appeal. Tory v. Mathena, No. 100639, at 1(Va. Sept. 29, 2010).2
On January 4,2012, Tory filed a Motion to Vacate a Void Judgment of Conviction in the
Circuit Court. Motion to Vacate Void Judgment of Conviction at 1, Commonwealth v. Tory,
No. CL12-278 (Va. Cir. Ct. filed Jan. 4,2012). On March 22,2012, the Circuit Court denied
that motion. Commonwealth v. Tory, No. CL12-278, at 4 (Va. Cir. Ct. Mar. 22, 2012). Tory
appealed. On September 26, 2012, the Supreme Court of Virginia refused Tory's Petition for
Appeal. Tory v. Commonwealth, No. 121043, at 1 (Va. Sept. 26, 2012).
On December 6,2012, Tory filed his initial request for habeas relief with this Court.3 In
his § 2254 Petition, Tory requests relief upon the following ground:
The Circuit Court and the Supreme Court of Virginia employed different spellings for
the Respondent's name.
This is the date Tory executed and presumably handed his initial request for habeas
relief to prison officials for mailing to this Court. (ECF No. 1, at 6). Accordingly, the Court
Before Petitioner was scheduled for his Preliminary Hearing on December
1, 2006[,] [t]he detective working the case recommended to the Common[w]ealth
Attorney that the Malicious Wounding charge be Aggravated Malicious
Wounding. On December 18, 2006 both charges of Malicious Wounding and
Aggravated Malicious Wounding were certified by a grand jury. Petitioner had
two active indictments for the same offense. Common[w]ealtn Attorney offered a
plea for the lesser offense in exchange for a guilty plea. Counsel for the Petitioner
never expressed to the Common[w]ealth Petitioner's willingness to accept the
plea offer to avoid conviction from the greater offense. As a result the original
plea offer was withdrawn and a trial date was set for the greater offense.
(§ 2254 Pet.4 (ECF No. 3) 14-15 (spelling and spacing corrected).)
II. ANALYSIS
A. Statute of Limitations
Respondent contends that the federal statute of limitations bars Tory'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:
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;
employs this date as the date the federal petition for a writ of habeas corpus was filed. See
Houston v. Lack, 487 U.S. 266, 276 (1988).
4The Court employs the pagination assigned to this document by the Court's CM/ECF
docketing system.
(C)
(D)
2.
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
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.
Commencement and Running of the Statute of Limitations
Tory's judgment became final on Thursday, January 17, 2008, the last date to file a notice
of appeal. See 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(a).5 Thus, Tory had until Tuesday, January 20,2009, to file his § 2254 Petition. See Fed.
R. Civ. P. 6(a)(1)(C). Because Tory failed to file his request for federal habeas relief until
December 6, 2012, the statute of limitations bars the action unless Tory demonstrates entitlement
to belated commencement of the limitation period pursuant to § 2244(d)(l)(B)-(D) or equitable
The rule provides:
No appeal shall be allowed unless, within 30 days after entry of final
judgment or other appealable order or decree, counsel 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 and the clerk of the Court of Appeals.
Va. Sup. Ct. R. 5A:6(a) (West 2007).
tolling.6 As explained below, Tory fails to demonstrate entitlement to belated commencement
under § 2244(d)(l)(B)-(D) or equitable tolling.
C.
Belated Commencement
Under 28 U.S.C. § 2244(d)(1)(D), a prisoner may receive a belated commencement of the
limitation period if "the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence" occurs after the date on which
his conviction became final under 28 U.S.C. § 2244(d)(1)(A). Here, Tory claims, at some time
prior to February 7, 2007, the prosecutor offered to allow Tory to plead to the lesser offense of
malicious wounding. (§ 2254 Pet. 16-17.) "Counsel informed [Tory] that he would discuss
stipulations concerning the plea agreement on February 7, 2007 before having him sign it and
taking it in front of the judge." (Id. at 17 (spacing corrected).) Although Tory was willing to
accept the offer, his counsel failed to convey Tory's willingness to the prosecutor and the
prosecutor withdrew the offer. (Id. at 16.)
Whether a petitioner has exercised due diligence is a fact-specific inquiry unique to each
case. See Wims v. UnitedStates, 225 F.3d 186,190-91 (2d Cir. 2000). A petitioner bears the
burden to 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-Lopez v. United States, 541 F.3d 814,
818 (8th Cir. 2008) (quoting Aron v. UnitedStates, 291 F.3d 708, 712 (11th Cir. 2002)). Due
diligence, however, "at least require[s] that a prisoner make reasonable efforts to discover the
facts supporting his claims." Id. (citing Aron, 291 F.3d at 712). Moreover, in evaluating a
6 Tory's state Petition for a Writ ofHabeas Corpus and Motion to Vacate fail to qualify
for statutory tolling under 28 U.S.C. § 2244(d)(2), because the limitation period expired before
he filed those actions. See Deville v. Johnson, No. I:09cv72,2010 WL 148148, at *2(E.D. Va.
Jan. 12,2010) (citing Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)).
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).
Here, with reasonable diligence, Tory could have discovered the facts supporting his
claim prior to pleading guilty to aggravated malicious wounding on February 27,2007. A
simple inquiry to his counsel or the prosecutor would have revealed counsel's alleged lapse in
failing to communicate Tory's willingness to plead to the lesser offense of malicious wounding.
See El-Abdullah v. Dir., Va. Dep't Co/r., No. 3:07CV494,2008 WL 2329714, at *2 (E.D. Va.
June 4,2008) ("[W]hen counsel's communications or lack thereof indicate that something is
amiss ... due diligence requires the petitioner to act on that information." (citations omitted)).
Accordingly, because Tory could have learned of the facts supporting his claim prior to the date
his conviction became final, Tory fails to demonstrate entitlement to a belated commencement of
the limitation period under 28 U.S.C. § 2244(d)(1)(D).
Tory mentions two recent Supreme Court decisions regarding the effective assistance of
counsel during the plea process in his § 2254 Petition. (§ 2254 Pet. 17 (citing Missouri v. Frye,
132 S. Ct. 1399 (2012); Lafler v. Cooper, 132 S. Ct. 1376 (2012)). These cases fail to warrant
belated commencement under 28 U.S.C. § 2244(d)(1)(C) for newly recognized constitutional
rights because Lafler and Frye "simply discussed the constitutional right to effective assistance
of counsel in the context of plea bargaining that defendants have enjoyed for decades." Harris v.
Smith, No. l:13-cv-182-FDW, 2013 WL 3329050, at *1 (W.D.N.C. July 2, 2013) (citing In re
Perez, 682 F.3d 930, 932-34 (11th Cir. 2012); In re King, 697 F.3d 1189 (5th Cir. 2012)).
D. Equitable Tolling
Courts may apply equitable tolling to 28 U.S.C. § 2254 petitions. See Holland v. Florida,
130 S. Ct. 2549, 2560 (2010). Nevertheless, only "rarely will circumstances warrant equitable
tolling." Rouse v. Lee, 339 F.3d 238,246 (4th Cir. 2003) (citing Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000)). The Supreme Court has "made clear that a 'petitioner' is 'entitled to
equitable tolling' only ifhe 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, 130
S. Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Tory fails to advance
any facts that demonstrate equitable tolling is appropriate here.
III. CONCLUSION
Forthe foregoing reasons, Respondent's Motion to Dismiss (ECF No. 7) will be
GRANTED. Tory's §2254 Petition will be DENIED. The action will be DISMISSED.7
An appropriate Order shall issue.
Date:/"'^"10
Richmond, Virginia
JsL
James R. Spencer
United States District Judge
7An appeal may notbetaken from the final order in a § 2254 proceeding unless ajudge
issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COAwill 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 onlywhen "reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a differentmanner or
that the issuespresented were 'adequate to deserve encouragement to proceedfurther.'" Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (some internal quotation marks omitted) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Tory fails to meet this standard. Accordingly, a
certificate of appealability will be DENIED.
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