Owens v. Ray et al
Filing
25
MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 11/21/2016. (sbea, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
NOV 2 I
I
.3
CLERK, U.S. DISTRICT COURT
RICHMOND VA
WILLIAM A. OWENS,
Petitioner,
v.
Civil Action No. 3:16CV112
TRACY RAY,
Respondent.
MEMORANDUM OPINION
William A. Owens, 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 City of Suffolk, 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. Owens has not filed a response to the Motion
to Dismiss. Instead, Owens filed a Motion for Summary Judgment (ECF No. 14), Motion for
Discovery (ECF No. 15), Motion to Amend Summary Judgment (ECF No. 17), and Motion for
Review (ECF No. 24). For the reasons set forth below, Respondent's Motion to Dismiss (ECF
No. 9) will be GRANTED, and Owens's Motions (ECF Nos. 14, 15, 17, 24) will be DENIED.
I. PERTINENT PROCEDURAL HISTORY
Following a bench trial held on December 16, 2011, Owens was convicted of three
counts of obtaining prescription drugs by fraud and three counts of conspiracy to commit
prescription fraud. 1 On May 3, 2012, Owens pied guilty in the Circuit Court to two counts of
1
Commonwealth v. Owens, No. CRl 1001219, at 1 (Va. Cir. Ct. Dec. 22, 2011); Commonwealth
v. Owens, No. CRl 1001223, at l (Va. Cir. Ct. Dec. 22, 2011); Commonwealth v. Owens, No.
CRl 1001224, at 1 (Va. Cir. Ct. Dec. 22, 2011); Commonwealth v. Owens, No. CRl 1001225, at 1
obtaining money by false pretenses, one count of possession of a firearm by a convicted felon,
one count of uttering, three counts of larceny with intent to sell or distribute, one count of credit
card theft, and one count ofpetit larceny. (See Plea Agreement~ 2, ECF No. 10-1, at 20-23.)
Owens also agreed "that he [was] in violation of the terms of his probation under indictment
CR08000379."2 Id On July 9, 2012, in a combined proceeding, the Circuit Court entered final
judgment with respect to his many convictions and sentenced him to an active sentence of seven
years. See Commonwealth v. Owens, No. CR12000479, at 2 (Va. Cir. Ct. July 9, 2012); Letter at
1, Commonwealth v. Owens, No. CR12000479 (Va. Cir. Ct. filed Nov. 13, 2012); see also June
27, 2012 Tr. 51-54.). Owens did not appeal.
On November 13, 2012, counsel for Owens filed a letter requesting that the Circuit Court
place the matter back on the docket for reconsideration of Owens' s sentences. Letter at 1,
Commonwealth v. Owens, No. CR12000479 (Va. Cir. Ct. filed Nov. 13, 2012). 3 On January 16,
2013, the Circuit Court denied Owens's motion for reconsideration. 4 Owens did not appeal.
On July 7, 2014, Owens, by counsel, filed a petition for a writ of habeas corpus in the
Circuit Court. Petition for Writ of Habeas Corpus at 1, Owens v. Ray, No. CL14-507 (Va. Cir.
Ct. filed July 7, 2014). On December 17, 2014, the Circuit Court denied and dismissed Owens's
(Va. Cir. Ct. Dec. 22, 2011); Commonwealth v. Owens, No. CRl 1001256, at 1 (Va. Cir. Ct. Dec.
22, 2011); Commonwealth v. Owens, No. CRl 1001257, at 1 (Va. Cir. Ct. Dec. 22, 2011).
2
Owens had been convicted of robbery on June 4, 2008.
CR08000379, at 1 (Va. Cir. Ct. July 9, 2012).
Commonwealth v. Owens, No.
3
While the letter was only filed in Case Number CR12000479, it references the case numbers
for all of the convictions mentioned above.
4
See Commonwealth v. Owens, Nos. CR08000379, CRl 1001219, CR11001223, CR11001224,
CRl 1001225, CRl 1001256, CRl 1001257, CRl 1001662, CR1200366, CR12000479,
CR12000481, CR12000508, CR12000510, CR12000512, CR12000682, and CR12000684, at 1
(Va. Cir. Ct. Jan. 16, 2013).
2
petition. (ECF No. 10-2, at 1-4.) On December 28, 2015, the Supreme Court of Virginia
refused Owens's petition for appeal. (ECF No. 10-4, at 1.)
On March 19, 2015, Owens filed a petition for a writ of error coram nobis in the Circuit
Court. (ECF No. 10-5, at 1.) On July 2, 2015, the Circuit Court denied Owens's petition. (ECF
No. 10-6, at 1-2.) On February 2, 2016, the Supreme Court of Virginia dismissed Owens's
petition for appeal because it was not timely filed. (ECF No. 10-8, at 1.)
On or about February 17, 2016, Owens filed his § 2254 Petition in this Court. 5 (§ 2254
Pet. 15.)6 In his § 2254 Petition, Owens asserts the following claims for relief:
Claim One:
Trial counsel rendered ineffective assistance of counsel by:
(a) failing to move for "an evaluation to determine whether Petitioner was
insane at the time of the offense" (id. App.Bat 1, ECF No. 1-3);
(b) "fail[ing] to perform a reasonable investigation regarding the defense
of insanity" (id.);
(c) "fail[in]g to file and argue a Motion to Suppress Petitioner's
confession" (id. at 2);
(d) "request[ing] only a competency evaluation regarding the Petitioner's
mental condition after having negotiated a plea agreement without the
benefit of a reasonable investigation regarding the insanity of the
Petitioner at the time of the offense" (id.);
(e) "fail[ing] to adequately argue on behalf of the Petitioner in sentencing
without having investigated the connection between the Petitioner's sanity
at the time of the offenses for purposes of mitigation" (id.); and,
(t) "fail[ing] to note the appeal for the Petitioner prior to withdrawing
from his representation, causing Petitioner to lose any opportunity to have
a direct appeal relating to his criminal charges" (id. at 3).
Claim Two:
"Due Process.
(§ 2254 Pet. 7.)
Bias/misconduct during post-conviction proceedings."
Claim Three: "Errors of Fact (Three Grounds and Supporting Facts)." (Id. at 8.)
5
This is the date that Owens 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).
6
The Court utilizes the pagination assigned to Owens's submissions by the CM/ECF docketing
system. The Court corrects the capitalization and punctuation in quotations from Owens's
submissions.
3
As a preliminary matter, Owens's second 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 habeas corpus relief." Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988)
(citing cases).
This is so because Owens is detained as a result of the underlying state
convictions, not the state collateral proceeding. See Lawrence v. Branker, 517 F.3d 700, 717
(4th Cir. 2008). Accordingly, Claim Two will be DISMISSED.
II. ANALYSIS
A.
Statute of Limitations
Respondent contends that the federal statute of limitations bars Owens'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
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.
4
2.
28
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
Owens's judgment became final on Wednesday, August 8, 2012, when the time to file an
appeal 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)(l)(A))); Va.
Sup. Ct. R. 5A:6(a) (providing no appeal allowed unless notice of appeal filed within thirty days
of final judgment). The limitation period began to run on August 9, 2012, and continued to run
for 96 days until Owens, through counsel, filed his motion to reconsider sentence on November
13, 2012.
C.
Statutory Tolling
Previously, the United States Court of Appeals for the Fourth Circuit held that "under the
plain language of section 2244(d)(2)-'State post-conviction or other collateral review-the
applicable one-year statute of limitations is tolled only for state collateral, post-conviction
review." Walkowiak v. Haines, 272 F.3d 234, 236 (4th Cir. 2001) (citation omitted). The Fourth
Circuit noted that "the term 'collateral review' refers to a proceeding separate and distinct from
that in which the original judgment was rendered, and in which the petitioner challenges the
legality of the original judgment." Id. at 23 7 (citation omitted). The Fourth Circuit concluded
that a motion brought under Rule 35(b) of the West Virginia Rules of Criminal Procedure did not
satisfy the definition of collateral review because it asked the same judge who presided over the
movant's case to modify the sentence imposed. Id. at 237-38.
5
In 2011, however, the Supreme Court abrogated the Fourth Circuit's decision in
Walkowiak. See Wall v. Kholi, 562 U.S. 545, 559 (2011 ). In Kholi, the Supreme Court defined
collateral review of a judgment to mean "judicial reexamination of a judgment or claim in a
proceeding outside of the direct review process." Id. at 553. Applying this definition, the Court
concluded that a motion to reduce sentence, brought under Rule 35 of the Rhode Island Rules of
Criminal Procedure, was "an application for 'collateral review' that triggers AEDPA's tolling
provision." Id. at 556.
Under the Kholi court's definition of "collateral review," Owens's motion for
reconsideration of sentence may constitute a collateral application for relief that, pursuant to
§ 2244(d)(2), tolled the one-year limitation period. However, the Court need not conclusively
determine that issue here. Even with the benefit of tolling during the pendency of the motion for
reconsideration of sentence, Owens's § 2254 Petition remains untimely.
The limitation period remained tolled until January 16, 2013, while Owens's motion for
reconsideration was pending in the Circuit Court. The limitation period began to run again on
January 17, 2013. At that time, Owens had 269 days remaining of the federal limitation period.
Therefore, Owens needed to file his § 2254 Petition by Monday, October 14, 2013 for it to be
filed within the limitation period. 7 Nevertheless, Owens failed to file his § 2254 Petition until
February 17, 2016. Thus, the statute of limitations bars Owens's § 2254 Petition. 8
7
The Court notes that when Owens filed his state habeas petition on July 7, 2014, the federal
limitation period had already expired, approximately nine months before. Thus, Owens lacks
any entitlement to statutory tolling for his state habeas petition. Deville v. Johnson, No.
1:09CV72 (CMH/TRJ), 2010 WL 148148, at *2 (E.D. Va. Jan. 12, 2010) (citing Webster v.
Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)). Likewise, Owens lacks entitlement to statutory
tolling for his petition for a writ of error coram nobis, filed on March 19, 2015.
8
Neither Owens nor the record suggests any plausible basis for belated commencement under 28
U.S.C. § 2244(d)(l)(B)-(D), or for equitable tolling.
6
III.
OUTSTANDING MOTIONS
Owens has filed a Motion for Summary Judgment (ECF No. 14) and a Motion to Amend
Summary Judgment (ECF No. 17), asking the Court to enter summary judgment in his favor on
the merits of his claims. Because Owens's § 2254 Petition is barred by the statute of limitations,
the Court will not reach the merits of Owens's claims. Accordingly, his Motion for Summary
Judgment (ECF No. 14) and Motion to Amend Summary Judgment (ECF No. 17) will be
DENIED.
Owens has also filed a Motion for Discovery.
(ECF No. 15.) Owens requests that
Respondent "forward all discovery associated with the complaint filed with JIRC, which
involves Judge Sandwitch and attorney John Randall." (Mem. Supp. Mot. for Discovery 6, ECF
No. 16.) Rule 6(a) of the Rules Governing Section 2254 Cases provides that "[a] judge may, for
good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure
.... " Rules Governing § 2254 Cases Rule 6(a). Good cause for discovery under Rule 6(a) is
shown "where specific allegations before the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is[] entitled to relief." Bracy
v. Gramley, 520 U.S. 899, 909 (1997) (citation omitted). The Court fails to discern, and Owens
fails to explain, how the purported discovery he seeks is necessary for the resolution of this
action.
Moreover, the Court finds that Owens's § 2254 Petition is barred by the federal
limitation period. Owens fails to demonstrate good cause to warrant discovery. Accordingly, his
Motion for Discovery (ECF No. 15) will be DENIED.
Finally, Owens has filed a Motion for Review. (ECF No. 24.) Owens asks that the Court
allow him to review the entire record that was forwarded to this Court by the Circuit Court so
that "Petitioner [can] be offered an opportunity to admit or deny their correctness." (Id at 1.)
7
Owens has provided no support for his apparent belief that the Circuit Court's records are
incorrect, and the Court has no reason to doubt their accuracy. Accordingly, his Motion for
Review (ECF No. 24) will be DENIED.
IV.
CONCLUSION
For the foregoing reasons, Respondent's Motion to Dismiss (ECF No. 9) will be
GRANTED. Owens's claims will be DISMISSED, and his § 2254 Petition will be DENIED.
Owens's Motion for Summary Judgment (ECF No. 14), Motion for Discovery (ECF No. 15),
Motion to Amend Summary Judgment (ECF No. 17), and Motion for Review (ECF No. 24) will
be DENIED. The action will be DISMISSED. A certificate of appealability will be DENIED.
An appropriate Final Order shall issue.
Date: November 1J_, 2016
Richmond, Virginia
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