Ward v. Clarke
Filing
18
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 11/6/14. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
SHAWN S. WARD,
Petitioner,
Civil Action No. 3:14CV11-HEH
HAROLD W. CLARKE,
Respondent.
MEMORANDUM OPINION
(Denying 28 U.S.C. § 2254 Petition)
Shawn S. Ward ("Ward"), a Virginia state prisoner proceeding pro se, brings this
petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") (ECF No. 4) challenging his
convictions in the Circuit Court for the City of Chesapeake ("Circuit Court").
Respondent moves to dismiss on the grounds that the one-year statute of limitations
governing federal habeas petitions bars Ward's § 2254 Petition. Respondent provided
Ward with the appropriate Roseboro notice1 (ECF No. 11). Ward has responded. For the
reasons set forth below, the Motion to Dismiss will be granted.
I. PROCEDURAL HISTORY
A.
Original Convictions and Direct Appeal
On August 3, 2009, the Circuit Court entered final judgment against Ward for two
counts of malicious wounding, use of a firearm in the commission of malicious
wounding, statutory burglary of a dwelling while armed, use of a firearm in the
1See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
commission of burglary, second degree murder, use of a firearm in the commission of
murder, wearing a mask in public, attempted murder, and use of a firearm in the
commission of attempted murder/malicious wounding. Commonwealth v. Ward, Nos.
CR08-1496 through CR08-1499 and CR08-1555 through CR08-1560, at 1, 3 (Va. Cir.
Ct. Aug. 3, 2009). Ward appealed, but the Supreme Court of Virginia denied Ward's
petition on December 20, 2010. Ward v. Commonwealth, No. 101460, at 1-2 (Va. Dec.
20,2010).
B.
State Habeas
On November 30, 2011, Ward filed a petition for a writ of habeas corpus with the
Supreme Court of Virginia. See Ward v. Warden ofthe Wallens Ridge State Prison,
No. 112132, at 1 (Va. May23,2012). The Supreme Court of Virginia dismissed the
petition on May 23, 2012. Id. at 2.
C.
§ 2254 Petition
Ward filed his original § 2254 Petition with this Court(ECF No. 1) on December
17,2013.2 His Amended §2254 Petition brings the following claims for relief:
Claim One
Counsel failed to make a timely objection to
prosecution's use of peremptory strikes to remove
three African American venire persons.
Claim Two
The Circuit Court improperly refused to provide the
jury with Ward's jury instruction regarding witness
misidentification.
The Court deems the petition filed onthe date Ward executed his original request for
federal habeas relief and presumably placed it inthe prison mailing system. Houston v. Lack,
487 U.S. 266,276 (1988). ByMemorandum Order entered February 12, 2014, the Court
required Ward to refile hispetition onthe standard forms for filing a § 2254 petition. Ward's
Amended Petition (ECF No. 4) supplanted the original filing. The Court employs the pagination
assigned to Ward's submissions by the CM/ECF docketing system.
ClaimThree
The Circuit Court improperly limited the crossexamination of Erica Arnold.
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 thejudgment 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
Ward'sjudgment became final for the purposes of the AEDPA on March 21,
2011, when thetime for filing a petition for a writ of certiorari with the Supreme Court of
the United States 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)); Sup. Ct. R. 13(1). The limitation period began to run on March 22,
2011 andran for 253 days before Ward filed his first state petition for a writ of habeas
corpus on November 30,2011. See 28 U.S.C. § 2244(d)(2).
B.
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 '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 office in which it must be
lodged, and the requisite filing fee." Id. (footnote omitted) (citations omitted). A petition
that is denied by a state court as untimely is not "properly filed" within the meaning of
the AEDPA. Pace v. DiGuglielmo, 544 U.S. 408,414,417 (2005) (citation omitted)
("When a postconviction petition is untimely under state law, that [is] the end of the
matter for purposes of § 2244(d)(2)").
For Ward, the statute of limitations tolled when he filed his state petition for a writ
of habeas on November 30, 2011, until the Supreme Court of Virginia dismissed that
petition on May 23, 2012. The limitation then recommenced on May 24,2012, and ran
for 572 days before Ward filed his initial request for federal habeas relief on December
17,2013. Because the limitation ran for 825 days before Ward filed his request for
federal habeas relief, the statute of limitations bars Ward's Amended § 2254 Petition
unless Ward demonstrates entitlement to a belated commencement of the limitation
period under 28 U.S.C. § 2244(d)(l)(B)-(D) or equitable tolling. Ward fails to
demonstrate either.
Ward suggests that the Court can ignore the statute of limitations in light ofthe
Supreme Court's decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012). The decision in
Martinez "relates to excusing a procedural default of ineffective-trial-counsel claims in
an initial § 2254 petition
" Lambrix v. Sec 'y Fla. Dep 't Corr., 756 F.3d 1246, 1260
(1 lth Cir. 2014) (emphasis omitted). The decision in Martinez fails toprovide any basis
for avoiding the statute oflimitations set forth in 28 U.S.C. §2244(d). Id. at 1262 (citing
Chavez v. Sec 'y Fla. Dep't Corr., 742 F.3d 940, 946-47 (1 lth Cir. 2014); Arthur v.
Thomas, 739 F.3d 611, 630 (1 lth Cir. 2014)). Accordingly, the Motion to Dismiss (ECF
No. 8) will be granted.
III. OUTSTANDING MOTION
On September 10, 2014, the Court received from Ward a Motion to Amend,
wherein he seeks to add the following claim:
Claim Four Counsel performed deficiently by failing "to argue in the Motion to
Strike the evidence that [the evidence] was insufficient to prove that
Barksdale or the petitioner actually fired the shots which killed
NyasiaTillman, wounded Mary Arnold and [wounded] Bernard
Person." (Br. Supp. Mot. Amend 7, ECF No. 15 (capitalization
corrected).)
Under Federal Rule of Civil Procedure 15(a), "leave to amend shall be given
freely, absent bad faith, undue prejudice to the opposing party, or futility of amendment."
United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000) (citing cases). Leave to
amend is appropriately denied as futile when, as is the case here, the statute of limitations
bars the new claim. SeeIngram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL
1792460, at *1 (E.D. Va. May 5, 2011). Accordingly, Ward's Motion to Amend (ECF
No. 14) will be denied.
IV. CONCLUSION
The petition for a writ of habeas corpus will be denied. The action will be
dismissed. The Court denies a certificate of appealability.
An appropriate Order shall issue.
ML
Date:No*.&(2o/V
Richmond, Virginia
1st
HENRY E.HUDSON
UNITED STATES DISTRICT JUDGE
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