Sparrow v. Director, VA Dept. of Corrections

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 12/15/2015. Clerk mailed copy to pro se Petitioner.(nbrow)

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

re
~

~··
DEG I 5 20l5

CLERK, U.S. DISTRICT COURT
RICHMOND, VA

DALE L. SPARROW,
Petitioner,

v.

Civil Action No. 3: 15CV220

DIRECTOR VA DEPT. OF CORRECTIONS,
Respondent.

MEMORANDUM OPINION
Dale L. Sparrow, a Virginia state prisoner proceeding prose, 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 Portsmouth, 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. Sparrow has responded. For the reasons set
forth below, the Motion to Dismiss (ECF No. 13) will be GRANTED.

I. PROCEDURAL HISTORY
Sparrow was convicted of two counts of robbery, two counts of abduction, armed
statutory burglary, and five counts of use of a firearm in the commission of those felonies. (ECF
No. 15-2, at 1.) The Circuit Court sentenced Sparrow to an active term of forty-five years of
imprisonment. (Id. at 1-2.) Sparrow appealed. On September 24, 2013, the Supreme Court of
Virginia refused Sparrow's petition for appeal. Sparrow v. Commonwealth, No. 130664, at 1
(Va. Sept. 24, 2013).
On August 1, 2013, during the pendency of his direct appeal, Sparrow filed his first
petition for a writ of habeas corpus in the Circuit Court. Petition for Writ of Habeas Corpus at 1,

Sparrow v. Commonwealth, No. CL13-2614 (Va. Cir. Ct. filed Aug. I, 2013). On October 4,
2013, the Circuit Court denied the petition on the merits. Sparrow v. Commonwealth, No. CL132614, at 4 (Va. Cir. Ct. Oct. 4, 2013).
On September 26, 2014, Sparrow filed a second petition for a writ of habeas corpus in the
Supreme Court of Virginia raising similar claims as those raised in the instant § 2254 Petition.

See Petition for Writ of Habeas Corpus at 1, 7-20, Sparrow v. Wright, No. 141425 (Va. filed
Sept. 26, 2014). On December 2, 2014, the Supreme Court of Virginia dismissed the petition as
successive pursuant to section 8.01-654(B)(2) of the Virginia Code. Sparrow v. Wright,
No. 141425, at 1 (Va. Dec. 2, 2014) (citing Va. Code Ann.§ 8.0l-654(B)(2).
On March 24, 2015, Sparrow filed his§ 2254 Petition with this Court. 1 In his§ 2254
Petition, Sparrow asserts the following claims for relief:
Claim One:

"Trial counsel denied Petitioner effective assistance of counsel by failing
to present a duress defense." (§ 2254 Pet. 7.) 2

Claim Two:

"Trial counsel was constitutionally ineffective by failing to preserve issues
for trial." (Id. at 13.)

Claim Three: "Trial counsel was constitutionally ineffective by failing to argue the
evidence the court used to convict petitioner." (Id. at 15.)
Claim Four:

"Trial counsel failed to present available mitigating evidence." (Id. at 19.)

Claim Five:

"Trial counsel failed to conduct investigations." (Id. at 22.)

Claim Six:

"Appellate counsel was constitutionally ineffective for failing to argue the
Ends of Justice exceptions." (Id. at 24.)

Claim Seven: "The convictions of both abduction with the underlying robbery
convictions served to subject the petitioner to double jeopardy as they
1

This is the date that Sparrow states that his § 2254 Petition was deposited in the prison mailing
system (see ECF No. 1, at 37), and the Court deems this as the date the§ 2254 Petition was filed.
See Houston v. Lack, 481 U.S. 266, 276 (1988).
2

The Court corrects the punctuation and spelling in the quotations from Sparrow's submissions.
The Court omits the emphasis in the quotations from Sparrow's submissions.
2

were insufficient of law to establish separate and apart from crimes." (Id.
at 28.)

II. ANALYSIS
A.

Statute of Limitations

Respondent contends that the federal statute oflimitations bars Sparrow's claims.
Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDP A") 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.

2.

28

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.
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.

u.s.c. § 2244(d).
B.

Commencement and Running of the Statute of Limitations

Sparrow's judgment became final on Monday, December 23, 2013, when the time to file
a petition for a writ of certiorari expired. See Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002)
3

("[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)(l)(A))); see Sup. Ct. R. 13(1) (petition for certiorari should be filed within ninety days
of entry of judgment by state court of last resort or of the order denying discretionary review).
The limitation period began to run on December 24, 2013, and continued to until run for 276
days until Sparrow filed his second state petition for a writ of habeas corpus in the Supreme
Court of Virginia on September 26, 2014. See 28 U.S.C. § 2244(d)(2).

C.

Statutory Tolling

The limitation period remained tolled until the Supreme Court of Virginia denied the
habeas petition as successive on December 2, 2014. The limitation period began to run again on
December 3, 2014 and expired eighty-nine days later on Monday, March 2, 2015. Sparrow
failed to file his§ 2254 Petition by that date. Rather, Sparrow filed his§ 2254 Petition 22 days
after the statute of limitations expired. Accordingly, the § 2254 Petition is barred unless Sparrow
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. Sparrow argues that
his § 2254 Petition is timely because the limitation period should be equitably tolled due to lack
of access to the law library and assistance from another inmate. (Reply~~ 6-7, ECF No. 17.)

3

As explained below, Sparrow's argument is not persuasive.
3

Sparrow does not argue that he is entitled to a belated commencement. Even if the Court were
to construe him to argue that his petition is timely under 28 U.S.C. § 2244(d)(l)(B), due to a
state-created impediment "in violation of the Constitution or the laws of the United States," this
argument would fail. To delay the running of the statute of limitations,§ 2244(d)(l)(B) requires:
(1) state action that both (2) violated the Constitution or laws of the United States and (3)
prevented the prisoner from filing a habeas petition. Ocon-Parada v. Young, No. 3:09cv87, 2010
WL 2928590, at *2 (E.D. Va. July 23, 2010) (citing Johnson v. Fla. Dep't of Corr., 513 F.3d
1328, 1331-32 (11th Cir. 2008)). First, the institution's denial of his request to access another
inmate for assistance or the law library does not amount to a state-created impediment in
violation of federal laws. See id. at *4 (citation omitted) (explaining that failure to provide legal
4

D.

Equitable Tolling

Sparrow claims that he is entitled to equitable tolling because he was "deni[ed] ... access
to the law library and assistance with [his] habeas filing." Sparrow explains, in sum:
When I twice requested, during the month of January 2014 alone, to either go to
the law library or receive assistance from one "trained in the law," I was informed
that neither request would be allowed due to my classification at the institution.
The remedy of a scheduled appointment to the institutional attorney was not
helpful because when I was finally scheduled, I was then transferred to another
institution. My time at Nottoway was more than the 23 days I am asking to be
tolled to allow consideration of this petition.
(Id

~

7.) Sparrow attached the two library requests dated January 3 and 5, which reveal that he

desired to obtain help from an inmate in another building. (ECF No. 17-1, at 1-2.) Those
requests were denied on January 9 and 15, and Sparrow was informed that he could submit a
request to meet with the institutional attorney. (See id. at 1-2.)
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 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
assistance for inmates does not violate the constitution because no right to counsel exists in
either state or federal habeas); Engel v. Clarke, No. 3:12CV586, 2014 WL 2157616, at *4 (E.D.
Va. May 23, 2014) (internal quotation marks omitted) (citations omitted) (explaining that no
"abstract, freestanding right to a law library or legal assistance exists;" thus, an inmate must
show that the lack of either violated his constitutional right to access to the courts). Second,
Sparrow fails to demonstrate that his failure to access a particular inmate or the law library
prevented him from timely filing his federal petition. Sparrow fails to explain with specificity
how any alleged deficiencies actually hindered his efforts to pursue his claims within the statute
oflimitations. See Mayes v. Province, 376 F. App'x 815, 816-17 (10th Cir. 2010) (citations
omitted); accord Finch v. Miller, 491 F.3d 424, 427 (8th Cir. 2007); Potter v. United States, Nos.
1:03cr595, 1:06cv157, 2007 WL 749674, at *4 (E.D.Va. Mar. 5, 2007) (citation omitted)
(rejecting petitioner's claims that his placement in a holding facility for four months and his
subsequent relocation to an institution with no access to legal materials or jailhouse lawyers
constituted an unconstitutional government-created impediment).
5

fulfills both elements of the test. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting

Brown v. Barrow, 512 F.3d 1304, 1307 (1 lth Cir. 2008)). Generally, the petitioner is obliged to
specify "'the steps he took to diligently pursue his federal claims."' Id at 930 (quoting Miller v.

Marr, 141 F.3d 976, 978 (10th Cir.1998)). As explained below, Sparrow has not demonstrated
that an extraordinary circumstance prevented him from 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 Veterans Affairs, 498 U.S. 89, 96
(1990); Fisher v. Johnson, 174 F.3d 710, 716 (5th Cir. 1999))). Instead, the record shows that
Sparrow's lack of diligence, rather than the circumstances of his incarceration, led to the delay in
filing his § 2254 Petition.
The Supreme Court of Virginia denied Sparrow's habeas petition on December 2, 2014.
Sparrow's requests to have assistance from another inmate or to visit the law library were made
and denied between January 3, and January 15, 2015. Sparrow, however, fails to state what
actions, if any, he took to pursue his federal claims in the days following the denial of his state
habeas petition on December 2, 2014, or after January 15, 2015 following the denial of his
requests by the institution. This alone forecloses Sparrow'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

6

petitioner in pursuing his rights" (citing Pace, 544 U.S. at 419; Spencer v. Sutton, 239 F.3d 626,
630 (4th Cir. 2001))). 4
Next, Sparrow fails to demonstrate the existence of an extraordinary circumstance that
prevented him from timely filing his§ 2254 Petition. To the extent Sparrow suggests that he was
not allowed to have "legal" assistance from a particular inmate or was prevented from visiting
the institutional attorney by his transfer, the mere absence of legal assistance is not an
extraordinary circumstance. See Ocon-Parada, 2010 WL 2928590, at *8 (citations omitted).
Moreover, generally, "'[t]ransfers between prison facilities, solitary confinement, lockdowns,
restricted access to the law library and an inability to secure court documents do not qualify as
extraordinary circumstances.'" Allen v. Johnson, 602 F. Supp. 2d 724, 727-28 (E.D. Va. 2009)
(alteration in original) (footnote omitted) (quoting Warren v. Kelly, 207 F. Supp. 2d 6, 10
(E.D.N.Y. 2002)). The inability to access a particular inmate during less than two weeks of
January 2015 and restricted access to the law library amounts to no extraordinary circumstance.
Sparrow's later transfer on an unspecified date also fails to excuse his tardy filing. See id.
Finally, Sparrow fails to allege specific facts that show that a lack of access to the law
library or the institution's denial of his request to meet with another inmate prevented him from
timely filing his§ 2254 Petition. See O'Neill v. Dir., Va. Dep't. of Corr., No. 3:10cv157, 2011
WL 3489624, at *6 (E.D. Va. Aug. 9, 2011) (citing cases). The claims in his§ 2254 Petition are
nearly identical to the claims he raised in his state habeas petition which he prepared and filed in
2014. Sparrow provides no explanation as to what more he needed and did not have that
prevented him from timely filing his § 2254 Petition. Sparrow fails to explain with specificity
how any of the alleged deficiencies actually hindered his efforts to pursue his claims within the
4

Sparrow fails to specify any efforts he made to pursue his grounds for habeas relief in the 276
days immediately following his conviction prior to the filing of his second state habeas petition.
7

statute of limitations. "Simply put, [Sparrow] fails to demonstrate some external impediment,
rather than his own lack of diligence, prevented him from filing a habeas petition in a timely
fashion." O'Neill, 2011 WL 3489624, at *6; cf Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)
(en banc). 5
Because Sparrow 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.

III.

CONCLUSION

For the foregoing reasons, Respondent's Motion to Dismiss (ECF No. 13) will be
GRANTED. Sparrow's§ 2254 Petition will be DENIED. The action will be DISMISSED. The
Court will deny a certificated of appealability. 6
An appropriate Final Order shall issue.

Isl

DEC 1 5
Date:
Richmond, Virginia

Roderick C. Young
United States Magistrate Judge

2015

5

Equitable tolling does not excuse Sparrow from complying with the statute of limitations
simply because he tried and came close to filing within limitation period. The petitioner must
give some account for each day he filed beyond the limitation period. In Rouse, the Fourth
Circuit held that petitioner, under sentence of death, who filed his§ 2254 petition one day late
was untimely as he had "not shown any extraordinary circumstances beyond his control that
prevented him from complying with the statute of limitations." Rouse, 339 F.3d at 241. Here,
Sparrow fails to specify adequately what steps he took between December 2, 2014 and the date
that he filed his § 2254 Petition to demonstrate that he diligently pursued his rights.
6

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)(l)(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)). Sparrow fails to meet this standard.
8