Eliaba v. Clarke
Filing
19
MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 09/07/2016. Copy mailed to Petitioner.(tjoh, )
I
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
i
SEP - 7 2016
CLERK, U.S. DISTRICT COURT
RICHMOND. VA
DESMON ELIABA,
Petitioner,
V.
Civil Action No. 3:15CV376
HAROLD CLARKE,
Respondent.
MEMORANDUM OPINION
Desmon Eliaba, a Virginia state prisoner proceeding pro se, brings this petition pursuant
to 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition," ECF No. 1) challenging his convictions in
the Circuit Court for the County of Gloucester, Virginia ("Circuit Court"). Respondent moves to
dismiss onthe ground that, inter alia, the one-year statute of limitations governing federal habeas
petitions bars the §2254 Petition. Eliaba has responded. (ECF No. 18.) For the reasons set
forth below, the Motion to Dismiss (ECF No. 12) will be GRANTED.
I. PERTINENT PROCEDURAL HISTORY
On November 14, 2011, Eliaba was found guilty of three counts of breaking and entering
a residence to commit grand larceny, and three counts ofgrand larceny, and was sentenced to an
active sentence of twelve years. Commonwealth v. Eliaba, Nos. CRl 1000216-00, CRl 1000217-
00, CRl 1000220-00 through CRl 1000222-00, at 1-2 (Va. Cir. Ct. Mar. 9, 2012);
Commonwealth v. Eliaba, No. CRl1000223-00, at 1 (Va. Cir. Ct. Mar. 20, 2012). On March 9
and 20, 2012, the Circuit Court entered final judgment.
E
Eliaba, Nos. CRl 1000216-00,
CRl1000217-00, CRl1000220-00 through CRl1000222-00, at 3; Eliaba, No. CRl1000223-00,
at 3. Eliaba appealed. On March 20, 2013, the Supreme Court of Virginia refused Eliaba's
petition for appeal. Eliaba v. Commonwealth, No. 121845, at 1 (Va. Mar. 20, 2013).
On March 28, 2014,' Eliaba filed a petition for a writ of habeas corpus with the Circuit
Court. See Eliaba v. Clarke, No. CL14-118, at 2 (Va. Cir. Ct. May 20, 2014). In it, Eliaba
raised the following claims for relief:
A.
The trial court committed plain error when conducting the joinder of
offenses involving petitioner and co-defendant where there was no prior
motion submitted by the Commonwealth.
B.
Defense counsel was ineffective for failing to request separate trials for
petitioner and co-defendant.
C.
The evidence adduced at trial was insufficient as a matter of law and fact
to convict petitioner of the charged offenses.
See id at 2 (capitalization corrected). On May 20, 2014, the Circuit Court dismissed Eliaba's
petition. Id. at 5. Specifically, the Circuit Court found that Eliaba's petition was "time-barred
under Virginia Code § 8.01-654(A)(2)." Id. at 2. Eliaba did not appeal the Circuit Court's
' Eliaba contends that his state petition was filed on March 19, 2014, when Eliaba placed it in the
prison mailing system for mailing to the Circuit Court. (Br. Supp. § 2254 Pet. 5, ECF No. 2 (as
paginated by CM/ECF).) The Circuit Court returned Eliaba's state petition to him on March 21,
2014, because the accompanying informa pauperis affidavit needed to be notarized. (Br. Supp.
Mot. Dismiss 4-5, ECF No. 14.);
also Va. Code Ann. § 8.01-655(B) (West 2016) (requiring
that the petitioner's signature, on both the habeas petition and in forma pauperis application, be
notarized). Eliaba notarized the in forma pauperis application on March 28, 2014. Petition for
Writ ofHabeas Corpus at 24, Eliaba v. Clarke, No. CL14-118 (Va. Cir. Ct. filed Mar. 28, 2014).
Thus, Eliaba's state habeas petition was not considered filed until March 28, 2014. See Va. Code
Ann.'§ 8.01-655(B) (noting that "[t]he petition will not be filed without prepayment of court
costs unless the petitioner is entitled to proceed in forma pauperis and has executed the affidavit
in forma pauperis" (emphasis added)); see also Visikides v. Dir., Dep't of Corr., No.
1:11CV1233 (JCC/TRJ), 2012 WL 3026232, at *2 (E.D. Va. July 23, 2012) (rejecting
petitioner's argument that his state petition was filed on January 28, 2011, because that petition
"was not 'properly filed' under Virginia law, as it did not substantially comply with the form
requirements of Virginia Code § 8.01-655, and petitioner did not submit the full filing fee");
Parker v. Johnson, No. 2:09CV84, 2009 WL 3254469, at *2 (E.D. Va. Oct. 8, 2009) (noting that
state habeas petition was not properly filed until January 25, 2008 because, when counsel
attempted to file the petition on November 15, 2007, it "was not sworn to by Petitioner as
required by Virginia Code § 8.01-655").
decision to the Supreme Court of Virginia. (See § 2254 Pet. 5; Br. Supp. Mot. Dismiss 2, ECF
No. 14.)
On or about June 14, 2015, Eliaba filed his § 2254 Petition in this Court.^ (§ 2254 Pet.
15.) In his § 2254 Petition, Eliaba asserts the following claims for relief:
Claim One
"The Circuit Court erred when determining the habeas petition was
untimely. The petition was placed in the prison internal mailing system
prior to the deadline by which to file." (§ 2254 Pet. 6.)^
Claim Two
"The state courts committed error when refusing to hear Petitioner's
appeal of trial court denial of habeas relief Petitioner did not receive
order of Circuit Court dismissal until after filing motion for disposition of
case and notice of intended writ of mandamus." {Id at 7.)
Claim Three "The trial court committed plain error when conducting the joinder of
offenses involving Petitioner and co-defendant where there was no prior
motion submitted by the Commonwealth." (Id. at 9.)
Claim Four
"Defense counsel was ineffective for failing to request separate trials for
Petitioner and co-defendant." (Id. at 10.)
Claim Five
"The evidence adduced at trial was insufficient as a matter of law and fact
to convict Petitioner of the charged offenses." (Id. at 12.)
Eliaba's first two claims do not provide any basis for federal habeas relief "[C]laims of error
occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus
relief" Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (citing cases). This is so because
Eliaba is detained as a result of the underlying state conviction, not the state collateral
proceeding. See Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008). Accordingly, Claims
One and Two will be DISMISSED.
^This is the date that Eliaba states he placed his § 2254 Petition in the prison mailing system for
mailing to this Court. The Court deems this the filed date. See Houston v. Lack, 487 U.S. 266,
276(1988).
^ The Court corrects the capitalization, emphasis, spelling, and punctuation in quotations from
Eliaba's submissions.
II. ANALYSIS
A.
Statute of Limitations
Respondent contends that the federal statute of limitations bars Eliaba'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
(C)
(D)
prevented from filing by such State action;
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
The Supreme Court of Virginia refused Eliaba's petition for appeal on March 20, 2013.
Eliaba's convictions became final on Tuesday, June 18, 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) ("[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)));
Sup. Ct. R. 13(1) (requiring that a petition for certiorari should be filed within ninety days of
entry of judgment by the state court of last resort or of the order denying discretionary review).
The limitation period began to run on June 19, 2013, and 282 days of the limitation period
elapsed before Eliaba filed his state petition for a writ of habeas corpus on March 28, 2014.
C.
No Entitlement to 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).
The Circuit Court dismissed Eliaba's state habeas petition as untimely filed. Eliaba v.
Clarke, No. CL14-118, at 2 (Va. Cir. Ct. May 20, 2014). 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 (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).").
Because Eliaba's state habeas petition was not properly filed, Eliaba lacks entitlement to
statutory tolling for the period during which he pursued his untimely state habeas petition in the
Circuit Court.
Accordingly, the limitation period began to run on June 19, 2013, and Eliaba had until
June 19, 2014 to file his § 2254 Petition. Eliaba failed to file his federal habeas petition until
June 14, 2015, nearly a year after the limitation period expired. Therefore, the action is barred
by the statute of limitations unless Eliaba 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. Eliaba argues entitlement to belated commencement of the limitation period
under 28 U.S.C. § 2244(d)(1)(B) orequitable tolling."
D.
State-Created Impediment in Violation of the Constitution
A claim for belated commencement due to State action "must satisfy a far higher bar than
that for equitable tolling." Saunders v. Clarke^ No. 3:11CV170, 2012 WL 689270, at *7 (E.D.
Va. Mar. 2, 2012) (quoting Leyva v. Yates, No. CV 07-8116-PA, 2010 WL 2384933, at *3 (C.D.
Gal. May 7, 2010)). To delay the running of the statute of limitations, § 2244(d)(1)(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)).
"[A] state-created impediment must, to animate the
limitations-extending exception [of§ 2244(d)(1)(B)], 'prevent' a prisoner from filing for federal
habeas relief" Wood v. Spencer, 487 F.3d 1, 7 (1st Cir. 2007). A court "should grant relief only
where a petitioner is 'altogether prevented . . . from presenting his claims in any form, to any
court.'" Saunders, 2012 WL 689270, at *7 (quoting Ramirez v. Yates, 571 F.3d 993, 1001 (9th
Cir. 2009)). Thus, a prisoner "must explain with specificity how any alleged deficiencies
^Neither Eliaba nor the record suggests any plausible basis for belated commencement under 28
U.S.C. § 2244(d)(1)(C) &(D).
actually hindered their efforts to pursue their claims within the statute of limitations." Id. (citing
Mayes v. Province, 376 F. App'x 815, 816-17 (10th Cir. 2010)).
Eliaba asserts that he is entitled to belated commencement of the limitation period under
28 U.S.C. § 2244(d)(1)(B) because he did not receive notice of the Circuit Court's dismissal of
his state habeas petition until April 13, 2015, almost one year after the petition was actually
dismissed. (Br. Supp. § 2254 Pet. 6 (as paginated by CM/ECF).) Eliaba contends that for this
reason, "the statute of limitations should not apply in the instant case because of [the Circuit
Court's] failure to timely notify [Eliaba] of the denial of the habeas corpus petition." {Id. at 7.)
Even if the Circuit Court failed to timely notify Eliaba that his state habeas petition had
been dismissed, Eliaba does not satisfy § 2244(d)(1)(B). First, Eliaba fails to identify any State
action that violated the Constitution. Eliaba contends that "the failure to timely notify constitutes
a state created impediment to appeal in direct violation of the Fifth and Fourteenth Amendments
to the United States Constitution," (Br. Supp. § 2254 Pet. 7 (as paginated by CM/ECF)), but fails
to explain how the provisions ofthese Amendments give him a right to appeal the denial ofhis
state habeas petition.
Eliaba also fails to explain with specificity how the State prevented him from filing his
§2254 Petition. See, e.g., Clarke v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (refusing to
apply § 2244(d)(1)(B) where the petitioner "failed to explain why the documents held by the
state were necessary to pursue his federal claim"). Here, it was Eliaba's own inaction that
caused the late filing of his § 2254 Petition. Eliaba does not indicate that he made any effort to
inquire about his state habeas petition between March 28, 2014, and April 13, 2015. Moreover,
Eliaba could have filed a protective petition in federal court if he was concerned about the
running of the federal statute of limitations. See Piggott v. Kelly, No. 3:11CV432, 2012 WL
3579613, at *4 n.9 (E.D. Va. Aug. 17, 2012) (citations omitted); Ocon-Parada v. Young, No.
3:09CV87, 2010 WL 2928590, at *3 n.lO (E.D. Va, July 23, 2010) (citing Pace, 544 U.S. at
416); cf. Madden v. Thaler, 521 F. App'x 316, 321 (5th Cir. 2013) (finding that the petitioner
was not entitled to belated commencement under § 2244(d)(1)(B) because an appellate court's
delay in issuing a mandate "did not prevent him from filing a timely protective federal petition
and seeking a stay of the one-year limitations period" (citing Gonzalez v. Thaler, 132 S. Ct. 641,
655-56 (2012); Pace, 544 U.S. at 416-17; Rhines v. Weber, 544 U.S. 269, 278 (2005))); Garcia
V. Hansen, No. 15-CV-00740-GPG, 2016 WL 559218, at *4 (D. Colo, Feb. 12, 2016) (citations
omitted) (rejecting petitioner's allegation that his "lack of receipt of the 'mandate verifying the
denial of the writ of cert.'" was a State-created impediment "that actually prevented him fi-om
filing [a § 2254 petition]"). Thus, Eliaba lacks entitlement to a belated commencement of the
limitation period.
E.
Equitable Tolling
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, 544 U.S. at 418). An inmate asserting equitable tolling
"'bears a strong burden to show specific facts'" that demonstrate he fulfills both elements ofthe
test. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d
1304, 1307 (11th Cir. 2008)).
In his response to the Motion to Dismiss, Eliaba suggests that he is entitled to equitable
tolling because he did not learn that the Circuit Court had dismissed his state habeas petition
until April 13, 2015, after Eliaba filed a Motion for Disposition in the Circuit Court in March of
8
2015.
(Br. 0pp. Mot. Dismiss 6-7, ECF No. 18; see Resp't's Reply to Pet'r's Mot. for
Disposition, Eliaba v. Clarke, No. CL14-118, at 1 (Va. Cir. Ct. filed Mar. 30, 2015).)
Lack of knowledge of a court's decision may provide a basis for equitable tolling when
the inmate acts diligently to seek information about his case. Ostrander v. Dir., Va. Dep't of
Corr., No.3:13cv634, 2014 WL 2170067, at *4 (E.D. Va. May 23, 2014) (citing Knight v.
Schofield, 292 F.3d 709, 711 (11th Cir. 2002); Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.
2000)). "[Cjourts have generally determined that a prisoner who delayed fewer than ten months
[after filing a state petition] before inquiring into the status of his case acted with sufficient
diligence." Fue v. Biter, 810 F.3d 1114, 1117 (9th Cir. 2016) (citing Diaz v. Kelly, 515 F.3d 149,
155-56 (2d Cir. 2008) (nine months); Miller v. Collins, 305 F.3d 491, 495-96 (6th Cir. 2002)
(nine months)); Phillips, 216 F.3d at 511 (four months). However, the United States Court of
Appeals for the Fifth Circuit has held that an inmate who waited eleven months before inquiring
as to the status of his state habeas petition also acted with sufficient diligence.
Hardy v.
Quarterman, 577 F.3d 596, 599 (5th Cir. 2009). In contrast, courts have determined that delays
of fourteen months or more do not demonstrate sufficient diligence to warrant equitable tolling.
See Fue, 810 F.3d at 1117 (fourteen months); (citing LaCava v. Kyler, 308 F.3d 271, 277 (3d
Cir. 2005) (twenty-one months); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (nearly
two years); Drew v. Dep't ofCorr., 297 F.3d 1278, 1288 (11th Cir. 2002) (sixteen months),
overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 (2005)). But see Knight, 292
F.3d at 710-11 (finding that period of approximately twenty-one months was reasonable because
the Georgia Supreme Court had personally notified petitioner that he would receive notice once a
decision was issued, and, after a year had passed, petitioner contacted the clerk seeking
information about the status of his case).
Here, Eliaba filed his state habeas petition on March 28, 2014. See Eliaba v. Clarke,
No. CL14-118, at 2 (Va. Cir. Ct. May 20, 2014). He waited approximately one year from the
date he filed his state habeas petition to inquire about its status. (Br. 0pp. Mot. Dismiss 6-7; see
Respondent's Reply to Petitioner's Motion for Disposition, Eliaba, No. CL14-118, at 1. By
waiting approximately one year after filing to inquire about the status of his state habeas petition,
Eliaba has failed to demonstrate the requisite diligence for equitable tolling. Cf. Cruz v. Small,
44 F. App'x 792, 793-94 (9th Cir. 2002) (finding that petitioner who waited "over a year to
inquire about his petition for review [to the California Supreme Court], then wait[ed] almost
another year to file his section 2254 petition" was not entitled to equitable tolling).
In any event, "the availability of equitable relief commends a flexible, case-by-case
approach." Fue, 810 F.3d at 1117. The facts present here suggest that Eliaba's decision to wait
approximately one year before inquiring as to the status of his state habeas petition was
unreasonable. On April 28, 2014, Eliaba was notified that a final order would be submitted to
the Circuit Court on or about May 12, 2014. Respondent's Reply to Petitioner's Motion for
Disposition, Eliaba, No. CL14-118, at 1.^ On May 13, 2014, Eliaba was notified again that a
final order was being submitted to the Circuit Court. Id. at 2. Therefore, Eliaba was put on
notice that he should expect to receive a final order inMay of 2014. Nevertheless, Eliaba waited
approximately ten months after receiving notice that a final order would be forthcoming to
inquire about the status of his state habeas petition. Eliaba has provided no explanation for why
he "sat on his hands and did not bother to inquire into the status of his petition," even after being
informed that a final order would soon be forthcoming. Fue, 810 F.3d at 1119; c/ Stroman v.
Thaler, 603 F.3d 299, 301-03 (5th Cir. 2010) (holding that petitioner who waited an additional
^ The record reflects that Eliaba received this correspondence because he filed a reply to the
respondent's motion to dismiss the habeas petition, which was received by the Circuit Court on
May 14, 2014. {See Br. 0pp. Resp't's Mot. Dismiss at 2, ECF No. 18.)
10
eighteen months to inquire again about status of habeas case, after being informed that it was still
pending, not entitled to equitable tolling). "Simply put, [Eliaba] 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 v. Dir., Va. Dep't of Corr., No. 3:10CV157, 2011 WL
3489624, at *6 (E.D. Va. Aug. 9, 2011).
Because Eliaba fails to demonstrate entitlement to belated commencement or equitable
tolling, the statute of limitation bars his § 2254 Petition.
III.
CONCLUSION
For the foregoing reasons. Respondent's Motion to Dismiss (ECF No. 12) will be
GRANTED. Eliaba's claims will be DISMISSED, and his § 2254 Petition will be DENIED.
The action will be DISMISSED. The Court will deny a certificate of appealability.
An appropriate Final Order shall issue.
(
hi
a
Roderick C. Young
United States Magistrate Judge
Date: September
Richmond, Virginia
,2016
11
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