Roacher v. Davis

Filing 24

MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 12/2/2015. Copy mailed to Pro Se Petitioner. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

LONNIE ROACHER,
Petitioner,
V.

Civil Action No. 3:15CV181

KEITH DAVIS,

Respondent.
MEMORANDUM OPINION

Lonnie Roacher, a Virginia state prisoner proceedingpro se, brings this petition pursuant
to 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition," ECF No. 1) challenging his convictions in
the Circuit Court of the City of Williamsburg and James City County, Virginia (hereinafter,

"Circuit Court"). Respondent moves to dismiss on the ground that, inter alia, the one-year

statute of limitations governing federal habeas petitions bars the § 2254 Petition. Roacher has
responded. For the reasons set forth below, the Motion to Dismiss (ECF No. 11) will be
GRANTED.

I. PROCEDURAL HISTORY

Roacher was convicted of possession of a firearm by a violent felon and two counts of
assault and battery of a law enforcement officer. Commonwealth v. Roacher, Nos. 19833-00
through 19835-00, at 1-2 (Va. Cir. Ct. Sept. 8, 2011). The Circuit Court sentenced Roacher to
six years of imprisonment. Id. at 2. Roacher appealed. On November 1, 2012, the Supreme

Court of Virginia refused Roacher's petition for appeal. Roacher v. Commonwealth,
No. 121119,atl (Va. Nov. 1,2012).

OnJuly 15, 2013, Roacher filed a petition for a writ of habeas corpus in the Circuit
Court. Petition for Writ of Habeas Corpus at 1,Roacher v. Davis, No. CLl3001250-00 (Va. Cir.

Ct. July 15, 2013). The Circuit Court denied the petition. Roacher v. Davis, No. CLl300125000, at 8 (Va. Cir. Ct.Nov. 25, 2013). Roacher appealed. On July 14, 2014, the Supreme Court

of Virginia refused Roacher's petition for appeal. Roacher v. Davis, No. 140335, at 1 (Va. July
14, 2014).

On or about March 13, 2015, Roacher filed his §2254 Petition with this Court.^ In his
§ 2254 Petition, Roacher asserts the following claims for relief:
Claim One

"The trial court refused to allow the jury to inspect a material

exhibit... moved into evidence by the court." (Mem. Supp. 2254 Pet. 2.f
ClaimTwo

"The Virginia Court of Appeals [and subsequently the state's Supreme
Court by its refusal of discretionary review] violated Roacher's ... rights
by affirming the trial court's ruling where the trial record is clear that
evidence was withheld from the jury." {Id. (alteration in original).)

Claim Three "Roacher's Sixth Amendment rights to the effective assistance of counsel
and a fair adversarial trial were violated by the ineffective assistance of
trial and appellate counsel." {Id. at 3.)

' This is the date that Roacher states that his § 2254 Petition was deposited in the prison mailing
system {see ECFNo. 1-2, at 1), and the Court deems this as the date the § 2254 Petition was
filed. See Houston v. Lack, 487 U.S. 266,276 (1988). The Court notes that Roacher's § 2254
Petition was not mailed by Roacher, but by David Cavalieri, at Sussex II State Prison. (ECF
No. 1-2, at 1.) Although Roacher was incarcerated at the Lawrenceville Correctional Center at
the time the Court received his § 2254 Petition, (ECF No. 1-1, at 1), the envelopethat contained
the § 2254 Petition bears a return address of "David Cavalieri... Sussex II StatePrison 2C-19

Waverly VA 23891" (ECF No. 1-2, at 1.) The envelope further reflects that it was received by
Sussex II State Prison Mailroom on March 16, 2015.

^The Court corrects the punctuation and removes the emphasis in the quotations from Roacher's
submissions.

IL ANALYSIS
A.

Statute of Limitations

Respondent contends that the federal statute of limitations bars Roacher'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 oflimitation for the filing ofapetition for a writ of
habeas corpus by a person incustody pursuant tothe judgment ofa 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 wnt 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)

(D)

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.

2.

The time during which a properly filed application for State postconviction 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

Roacher's judgment became final onWednesday, January 30, 2013, when the time to file

a petition for a writ ofcertiorari expired. See Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002)

("[T]he one-year limitation period begins running when direct review ofthe state conviction is

completed or when the time for seekingdirect review has expired

" (citing 28 U.S.C.

§ 2244(d)(1)(A))); see Sup. Ct. R. 13(1) (petition for certiorari should be filed withinninety days
of entry of judgment by state court of last resort or of the order denying discretionary review).

The limitation period beganto run on January 31, 2013, and continued to until run for 165 days
until Roacher filed his state petition for a writ of habeas corpus on July 15, 2013. See 28 U.S.C.
§ 2244(d)(2).
C.

Statutory Tolling

The limitation periodremained tolled until the Supreme Courtof Virginia refused the
petition for appeal with respectto the state habeas petition on July 14, 2014. The limitation
period began to run again on July 15, 2014 and expired 200 days later on Friday, January 30,
2015. Roacher failed to file his § 2254 Petition by that date. Rather, Roacher filed his §2254

Petition42 days after the statute of limitations expired. Accordingly, the § 2254 Petitionis
barred unless Roacher demonstrates entitlement to a belated commencement of the limitation

period under 28 U.S.C § 2244(d)(l)(B)-(D) or some equitable exception to the limitation period.
Roacher argues that his § 2254 Petition is timely because the limitation period should be

equitably tolled dueto his temporary incapacitation. (Traverse 1-4, ECF No. 18.) As explained
below, Roacher's argument is not persuasive.

Roacher claims that he is entitled to equitable tolling because on, November 27,2014,
while at the Lawrenceville Correctional Center, he was attacked by another inmate. (Traverse 1-

2.) As a result of this assault, Roacher sustained a "fracturedjaw, contusion from blunt force

traumathat required 4 staples to the back of [his] headand left [him] with a concussion." (Id)
Roacher remained in medical isolation from November 28, 2014 until December 30,2014. (Id

at 2.) While in medical isolation for 33 days, Roacher "was not allowed any of [his] personal

property and/or [to] visit the institution's law library." {Id.) Even after Roacher's release from
medical isolation, he continued to suffer from "blurred vision, headaches, insomnia, [and] posttraumatic stress disorder ...." {Id)

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,
560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). An inmate

asserting equitable tolling "'bears a strong burden to show specific facts'" that demonstrate he
fulfills both elements of the test. Yangv. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting
Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)). Generally, the petitioner is obliged to

specify "'the steps he took to diligentlypursue his federal claims.'" Id. at 930 (quotingMiller v.
Marr, 141 F.3d 976, 978 (10th Cir.1998)). As explained below, Roacher has not demonstrated
that an extraordinary circumstance prevented filing his § 2254 Petition in a timely manner.
Valverde v. Stinson, 224 F.3d 129,134 (2d Cir. 2000) (observing that a petitioner is required "to

demonstrate a causal relationship between the extraordinary circumstances on which the claim
for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if
the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the
extraordinary circumstances" (citing Irwin v. Dep't of VeteransAffairs, 498 U.S. 89, 96 (1990);
Fisher V. Johnson, 174 F.3d 710, 716 (5th Cir. 1999))).

Roacher was released from medical isolation on December 30, 2014. Upon his release,

Roacher had ample opportunity to file his § 2254 Petition prior to the January 30, 2015

deadline.^ Roacher fails to state what actions, if any, he took in the days following his release
^"[A] bare assertion thata petitioner suffers from some mental impairment, 'without more, is
insufficient to justify equitable tolling.'" Robison v. Hinkle, 610 F. Supp. 2d 533, 539 (E.D. Va.
5

from isolation to pursue his federal claims. This alone forecloses Roacher's entitlement to

equitable tolling. Yang^ 525 F.3d at 930 (citation omitted); Roberts v. Watson, 697 F. Supp. 2d
646, 653 (E.D. Va. 2010) ("Unexplained delays in filing petitions do not demonstrate diligence
on the part of petitioner in pursuing his rights" (citing Pace, 544U.S. at 419; Spencer v. Sutton,
239 F.3d 626, 630 (4th Cir. 2001))).

Moreover, the record indicates that some of the delay in filing the action was occasioned

by Roacher's failure to mail the § 2254 Petition directly to this Court. As noted above, in
footnote 1, Roacher apparently transmitted his § 2254 Petitionto David Cavalieri, at Sussex II
StatePrison, ratherthan sending it promptly to this Court. Cf Rouse v. Lee, 339 F.3d 238, 246

(4th Cir. 2003) (en banc)."*
Because Roacher fails to demonstrate that some extraordinary circumstance, rather than

his own lack of diligence, prevented him from filing in a timely manner, the statute of limitations
bars the § 2254 Petition.

2009) (quoting Lawrence v. Florida, 421 F.3d 1221,1227 (11th Cir. 2005)). Roacher's vague
complaints of headaches, blurred vision, insomnia and post-traumatic stress disorder following
his release from isolation fail to qualify as extraordinary circumstances that warrant equitable
tolling. See id at 541-42 (rejecting petitioner's demand for equitable tolling based on his
generalized assertion that he suffered from post-traumatic stress disorder). Roacher makes no
effort to explain howany of his alleged mental or physical ailments actually prevented him filing
a § 2254 petition.

Equitable tolling does not excuse Roacher from complying withthe statute of limitations
simply because he tried and came close to filing within limitation period. Thepetitioner must
give some account for each dayhe filed beyond the limitation period. In Rouse, the Fourth
Circuit held that petitioner, under sentence of death, who filed his § 2254 petition oneday late
was untimely as he had"not shown any extraordinary circumstances beyond his control that
prevented him from complying withthe statute of limitations." Rouse, 339 F.3dat 241, 253.

III.

CONCLUSION

For the foregoing reasons. Respondent's Motion to Dismiss (EOF No. 11) will be
GRANTED. Roacher's § 2254 Petition will be DENIED. The action will be DISMISSED. The

Court will deny a certificated ofappealability.^
An appropriate Final Order shall issue.

Date:

- ? 2D15

Roderick C. Young
United States Magistrate Judg

Richmond, Virginia

An appeal may not be taken from the final order ina §2254 proceeding unless ajudge issues a
certificate ofappealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue unless a

prisoner makes "a substantial showing ofthe denial ofa 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 beenresolved 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)). Roacher fails to meet this standard.