Chapman v. C. Allen

Filing 25

MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 12/19/2016. Copy mailed to Petitioner. (walk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JOHNNY RAY CHAPMAN,

Petitioner,

v.

Civil Action No. 3:15CV783

C. ALLEN,

Respondent.
MEMORANDUM OPINION

Johnny Ray Chapman, a Virginia state prisoner proceeding pro se, brings this petition
pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his convictions in the
Circuit Court for the County of Southampton, Virginia ("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. For the reasons set forth below, the Motion to Dismiss (ECF
No. 15) will be GRANTED.
I. PERTINENT PROCEDURAL HISTORY

On July I l, 2013, the Circuit Court entered final judgment and sentenced Chapman to an
active prison term of twelve years and six months for possession with intent to distribute 227
grams of methamphetamine and felony child abuse. (ECF No. 17-2, at l-4.) Chapman did not
appeal.
On September 27, 2013, Chapman filed a petition for a writ of habeas corpus with the
Circuit Court ("First State Habeas Petition"). (ECF No. 17-3, at 1.) On January 28, 2014, the
Circuit Court denied the First State Habeas Petition. (ECF No. 17-4, at 5.) Chapman did not
appeal.

On May 28, 2015, Chapman filed a second petition for a writ of habeas corpus with the
Supreme Court of Virginia ("Second State Petition"). (ECF No. 17-5, at 1.) On November 18,
2015, the Supreme Court of Virginia dismissed the Second State Petition. (Id.)
On December 1, 2015, Chapman filed his § 2254 Petition in this Court. 1 (§ 2254 Pet.
15.) In his§ 2254 Petition, Chapman asserts the following claims for relief: 2
Claim One

"The state court erred when it denied Petitioner's state habeas corpus as
contrary to clear and overwhelming evidence of ineffective assistance of
counsel." (Id. at 6.)

Claim Two

Chapman was denied the effective assistance of counsel when counsel,
"by letter of August 6, 2013," refused Chapman's request that counsel file
an appeal. (ECF No. 2, at 3 (as paginated by CM/ECF).)

Claim Three

My attorney pressured me into pleading guilty. (Id. at 3--4 (as paginated
by CM/ECF).)

Chapman's first claim does 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 habe(l.s corpus
relief." Bryant v. J\1ary/and, 848 F.2d 492, 493 (4th Cir. 1988) (citing cases). This is so because
Chapman 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, Claim
One will be DISMISSED.

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This is the date that Chapman 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, spelling, and punctuation m the quotations from
Chapman's submissions.

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II. ANALYSIS
A.

Statute of Limitations

Respondent contends that the federal statute of limitations bars Chapman'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.

2.

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A I-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

As Chapman failed to file an appeal, under 28 U.S.C. § 2244(d)(l)(A), his judgment
became final on Monday, August 12, 2013, when the time to file a notice of appeal expired. See

Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) C'[T]he one-year limitation period begins

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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))); Va. Sup. Ct. R. 5A:6(a)
(allowing no appeal unless notice of appeal filed within thirty days of final judgment).
Nevertheless, under 28 U.S.C. § 2244(d)(1 )(0), Chapman may be entitled to a belated
commencement of the limitation period for Claim Two, wherein he contends that counsel failed
to file an appeal as requested. El-Abdu 'I/ah v. Dir., Virginia Dep 't of Corr., No. 3 :07CV 494,
2008 WL 2329714, at *2 (E.D. Va. June 4, 2008).

Under § 2244(d)(l)(D), the one-year

limitation period commences on "the date on which the factual predicate of the claim ... could
have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(l)(D); see

Owens v. Boyd, 235 F.3d 356, 359-60 (7th Cir. 2000). Thus, this Court must detem1ine when,
acting with reasonable diligence, Chapman could have discovered that his direct appeal had not
been filed. See Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). Given that on August
6, 2013, counsel sent Chapman a letter indicating that he would not be pursuing an appeal,
Chapman should have known upon receipt of the letter that counsel was not pursuing an appeal.
Therefore, as Chapman presumably received the letter within a week or so of its mailing,
Chapman knew the factual predicate for Claim Two by August 20, 2013. Accordingly, the
limitation period began to run on the next day, and continued to run for 37 days until Chapman
filed his First State Habeas Petition on September 27, 2013. See 28 U.S.C. § 2244(d)(2).

C.

Statutory Tolling

The limitation period remained tolled from September 27, 2013 until January 28, 2014,
when the Circuit Court dismissed the First State Habeas Petition. Upon the dismissal of the First
States Habeas Petition, the limitation period ran for well over a year before Chapman filed his
Second State Habeas Petition on May 28, 2015. Thus, the present§ 2254 Petition is barred by

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the statute of limitation unless Chapman demonstrates some equitable basis for avoiding the
statute of limitation. As explained below, Chapman fails to make any such demonstration.

D.

Equitable Tolling

The Supreme Court has "made clear that a 'petitioner' is 'entitled to equitable tolling'
only if he shows '(l) 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. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting

Brown v. Barrow, 512 F.3d 1304, 1307 (1 lth Cir. 2008)).
Here, Chapman asserts that his § 2254 Petition is timely "[b ]ccause of the time taken in
state court and the fact [that] I cannot read or write I have exercised all due diligence available to
me. I am illiterate of the law and have not been able to exercise my due process rights because
of this." (§ 2254 Pct. 14.) Such allegations fall woefully short of those necessary to demonstrate
entitlement to equitable tolling. See United States v. Sosa, 364 F .3d 507, 512 (4th Cir. 2004)
("[E]ven in the case of an unrepresented prisoner, ignorance of the law is not a basis for
equitable tolling." (citing Cross·Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir. 2003))); Turner

v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999) (concluding illiteracy fails to warrant equitable
tolling). "Simply put, [Chapman] fails to demonstrate some external impediment, rather than his
own lack of diligence, prevented him from filing a habeas petition in a timely fashion." 0 'Neill

v. Dir.. Va. Dep't of Corr., No. 3:10CV157, 2011 WL 3489624, at *6 (E.D. Va. Aug. 9, 2011).
Because Chapman fails to demonstrate entitlement to equitable tolling, the statute of limitations
bars his § 2254 Petition.

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III.

CONCLUSION

For the foregoing reasons, Respondent's Motion to Dismiss (ECF No. 15) will be
GRANTED. Chapman'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.

Isl
Roderick C. Young
United States Magistrate Judge
Date: December J!/_, 2016
Richmond, Virginia

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