Perry v. Commonwealth of Virginia et al
Filing
11
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 8/27/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ALBERT LEWIS PERRY, JR.,
Petitioner,
Civil Action No. 3:13CV327-HEH
COMMONWEALTH OF
VIRGINIA, e/ ai,
Respondents.
MEMORANDUM OPINION
(Denying 28 U.S.C. § 2254 Petition)
Albert Lewis Perry, a Virginia state prisoner, by counsel brings this petition
pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition" (ECF No. 1)) challenging his convictions
in the Circuit Court of the County of Chesterfield ("Circuit Court"). Respondents moved
to dismiss on the ground, inter alia, that the one-year statute of limitations governing
federal habeas petitions bars the § 2254 Petition. Perry responded. Respondents replied
to Perry's response. The matter is ripe for disposition.
I. PROCEDURAL HISTORY
A.
Original Conviction and Appeal
The Circuit Court convictedPerry of first-degree murder. Perry appealed. On
January 26, 2011, the Court of Appeals of Virginia denied Perry's appeal. Perry v.
Commonwealth, No. 0520-10-2, at 1 (Va. Ct. App. Jan. 26, 2011). The Supreme Court of
Virginia refused his subsequent appeal on June 29, 2011. Perry v. Commonwealth, No.
110322, at 1 (Va. June 29, 2011). Perry did not file a petition for a writ of certiorari in
the United States Supreme Court.
B.
State Habeas
On July 29, 2011, Perry filed apro se petition for a writ of habeas corpus in the
Circuit Court.1 The Circuit Court denied Perry's petition (Chesterfield Circuit Court No.
CL11HC-1972 Sept. 12, 2011). Perry appealed that ruling to the Supreme Court of
Virginia, which refused his petition for appeal. Perry v. Clarke, No. 112006, at 1 (Va.
Mar. 19,2012).
C.
§ 2254 Petition
On May 22, 2013, Perry filed his § 2254 Petition with this Court (§ 2254 Pet. 1).
In the § 2254 Petition, Perry makes the following claims for relief:
Claim One
Perry was denied his Sixth Amendment right to a
speedy trial because the Commonwealth's delay in
bringing him to trial was presumptively prejudicial,
lacked valid justification, and caused Perry prejudice
in preparing his defense. (§2254 Pet. 11 - 24.)
Claim Two
Perry was denied due process of law in violation of the
Fourteenth Amendment because based on the evidence
presented at his jury trial, no reasonable trier of fact
could have found him guilty beyond a reasonable
doubt of first-degree murder, (Id. at 24 -42.)
1Perry argues that he filed his state habeas corpus petition on July 25, 2011 - not
July 29, 2011. Pet'r's Resp. 2. However, it is plain that Perry's state habeas corpus
petition bears the stamp of the Clerk of the Circuit Court of Chesterfield County, which
indicates that it was "RECEIVED & FILED" on "2011 JUL 29 AMI 1:49" (ECF No. 10l,atl).
2
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
Perry's judgment became final for the purposes of the AEDPA on Tuesday,
September 27, 2011 - ninety days after the Supreme Court of Virginia denied Perry's
direct 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))). The statute of limitations began to run the next day, Wednesday,
September 28, 2011. See Fed. R. Civ. P. 6(a)(1)(A).
B.
The Running of the Statute of Limitations
The statute of limitations initially was tolled because Perry filed a petition for a
writ of habeas corpus with the Supreme Court of Virginia on July 29, 2011. The statute
of limitations remained tolled until the Supreme Court of Virginia denied Perry's habeas
appeal on March 19, 2012. See 28 U.S.C. § 2244(d)(2). Perry's time in which to file his
§ 2254 Petition with this Court then began to run on that date and expired on March 20,
2013, prior to Perry's filing of his § 2254 Petition with this Court. Because the statute of
limitations ran for four hundred and twenty-eight (428) days before Perry filed his § 2254
Petition, the statute of limitations bars this Petition unless Perry demonstrates entitlement
to either a belated commencement of the limitation period under 28 U.S.C. §
2244(d)(l)(B)-(D) or equitable tolling. Neither Perry nor the record suggests any
circumstances that would warrant a belated commencement of limitation period.
C.
Equitable Tolling
Perry suggests that the Court should excuse his late filing because he is actually
innocent of the crime of first-degree murder. (Pet'r's Resp. 4.) Specifically, Perry argues
entitlement to relief because he was denied due process of law in violation of the
Fourteenth Amendment because based on the evidence presented at his jury trial, no
reasonable trier of fact could have found him guilty beyond a reasonable doubt of firstdegree murder. (Id.) Such argument lacks legal and factual merit.
When the Court of Appeals of Virginia denied Perry's petition for appeal, the
Court aptly summarized the facts as follows:
Medical evidence established that Gray [the victim] was strangled
with a nylon stocking (ligature) that had been double-knotted around her
neck. Gray was staying at a Holiday Inn at the time. In addition to her
regular job, Gray worked periodically as an independent contractor for
Shelly Ottenbrite, who ran an escort service called "Touch of Pink." In late
November 2007, Ottenbrite was out of town and allowed customer calls to
be forwarded to Gray.
At the time of the murder, appellant resided in Room 314 at the
hotel, which was located approximately thirty feet from the third floor
stairwell where Gray's body was found. Police canvassed the hotel guests
and spoke with appellant. Investigators went to appellant's room and
showed him a photograph of Gray's body, but appellant said he did not
know her and did not hear anything suspicious the previous night.
During a lengthy police interview on November 30, 2007, appellant
initially denied any knowledge of Gray or the murder. However, after the
police advised him of certain evidence, appellant began to change his story.
Eventually, appellant indicated that he knew Gray as "Shelly," they were
very close friends, and Gray had come to his room several times in the past
and been intimate with him. According to appellant, Gray did not charge
him for her services. . . . After police advised appellant that they recovered
footprints near Gray's body that matched his boots, appellant admitted he
contacted Gray to come to his room that night. He said he found her body
in the stairwell after he had returned to his room from consuming a large
amount of cocaine. . . . [Once appellant discovered Gray's dead body,]
[fjearing he would be the prime suspect, and despite his alleged friendship
with Gray, appellant decided to return to his room and not to report the
crime.
. . . [Police also] investigated all possible leads and suspects,
including other hotel guests, and eliminated them as suspects. Forensic
tests also failed to locate the person appellant claimed killed Gray, namely,
[appellant's drug dealer] "Justin."
Perry v. Commonwealth, No. 0529-10-2, at 1-3.2
The Court of Appeals of Virginia, thus, concluded that "[t]he totality of the
Commonwealth's evidence, though circumstantial, was competent, was not inherently
incredible, and was sufficient to prove beyond a reasonable doubt that appellant was
guilty of murdering Gray." Id. at 3.
In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination
of a factual issue made by a State court shall be presumed to be correct.
The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1). Perry has not presented any evidence rebutting that
presumption here.
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
2This summary of the facts comes from an October 20, 2010 order by the Court of
Appeals of Virginia, which was later adopted in a January 26,2011 order from the Court
of Appeals of Virginia, which denied Perry's petition for appeal for the reasons given in
the October 20, 2010 order.
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 Perry's arguments under the more lenient standard for
gateway actual innocence claims, because subscribing to Perry'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 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)).
Perry simply has not provided any reliable new evidence of his innocence. Thus,
the Court does not proceed to the second step of the inquiry. Perry merely relies on his
own affidavit to support his claim for actual innocence. In his affidavit, Perry contends
that he left the victim "in the hotel suite [where she was soon murdered] with a man she
didn't know at all and a man whom [Perry] didn't know the way [he] thought," (§ 2255
Pet. Perry Aff. 1.) Perry claims that he left the hotel suite, and "went down to the picnic
table area located in the back of the hotel," and it was there that he "spent the next few
hours getting high and consuming all of the cocaine (3 lA grams) and beer." (Id.) Perry
explained that he later returned to the hotel suite and did not find the victim there. (Id. at
2.) He heard a woman scream, went to the hallway where he heard a different woman
crying, and went to the stairwell after the crying woman pointed toward the stairwell.
(Id.) Perry found the dead victim, whom he claims he did not murder, in the stairwell.
(Id.) Perry's affidavit is not "trustworthy" and does not constitute "new reliable
evidence" of innocence sufficient to support a claim of actual innocence. Schlup, 513
U.S. at 324.
Because Perry fails to advance any plausible basis for excusing his failure to
comply with the statute of limitations, the Motion to Dismiss (ECF No. 5) will be
8
granted. The petition for a writ of habeas corpus 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)). No law or
evidence suggests that Perry is entitled to further consideration in this matter. The Court
will deny a certificate of appealability.
An appropriate Order shall issue.
Ab^
Date:Anyi*Tan;lOl3
Richmond, Virginia
Is/
HENRY E. HUDSON
UNITED STATES DISTRICT JUDGE
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