Hayes v. Director, Va. Dept. of Corr.

Filing 26

MEMORANDUM OPINION. See Opinion for complete details. Signed by Magistrate Judge Roderick C. Young on 02/03/2017. Copy sent to counsel of Respondent and Hayes as directed.(ccol, )

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

p

If

Richmond Division

HERMAN LEE HAYES, JR„

1 L

E

FEB - 3 2DI7

CLERK. U.S. DiSTfliCT COURT
RICHMOND. VA

Petitioner,

V.

Civil Action No. 3:16CV144

DIRECTOR, VA. DEPT. OF CORR.,
Respondent.
MEMORANDUM OPINION

Herman Lee Hayes, Jr., 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 City of Virginia Beach, 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. Despite receiving Roseboro^ notice as well as an extension of
time, Hayes has not filed a response to the Motion to Dismiss. Hayes has also filed a Motion for
Discovery. (ECF No. 8.) Forthe reasons set forth below, Respondent's Motion to Dismiss (ECF
No. 15) will be GRANTED, andHayes'sMotion for Discovery (ECF No. 8)willbe DENIED.
1. PERTINENT PROCEDURAL HISTORY

On February 13, 2008, a jury convicted Hayes of simple assauh or assault and battery of
a law enforcement officer, two counts of abduction, attempted robbery, robbery, eluding police-

endangerment, four counts of use of a firearm in the commission of a felony, wearing a mask in
public, resisting arrest, and driving on a suspended or revoked operator's license.

Commonwealth v. Hayes, Nos. CR06-1656/CR06-1635, at 1 (Va. Cir. Ct. Sept. 15, 2008).
Following a bench trial on July 29, 2008, Hayes was convicted of possession of a firearm by a
' Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

violent felon. Id.

On September 15, 2008, the Circuit Court entered final judgment and

sentenced Hayesto a total sentence of 31 years and 36 months. Id. at 2.

Hayes appealed to the Court of Appeals of Virginia, arguing that the Circuit Court erred
by: (1) denying his motion to dismiss the abduction charges because the restraint employed was
inherent in the crime of robbery; (2) denying his motion to retest DNA located on the firearm;
and (3) finding that the evidence was sufficient to support his convictions for two counts of
abduction, four coimts of use of a firearm in the commission of a felony, and one count each of

attempted robbery, robbery, eluding, wearing a mask in public, resisting arrest, assault and
battery on a police officer, and driving on a suspended license. (ECF No. 16-1, at 1-4.) The

Court of Appeals denied Hayes's appeal. {Id. at 1.) With respect to the sufficiency of the
evidence, the Court of Appeals stated:

[T]he evidence showed that Paul Miller was employed by Aristocrat Towing and,
on the day in question, he was towing vehicles near the oceanfront. Miller
testified appellant approached him and asked if a certain car had been towed.
Miller checked and told appellant that the car was in the impound lot of Aristocrat
Towing. Miller agreed to drive appellant to Aristocrat Towing, When Miller
arrived at Aristocrat Towing, Philip Watson was standing outside the locked gate.
Miller testified appellant stated he did not have the money to get his car, but he
wanted to get a few items from the car. Millernext testified that he told appellant
he could go to his car to retrieve the items. Miller and Watson then entered the
office to complete the paperwork for Watson's car.

Miller then testified appellant entered the office with a bandana over the
bottom part of his face, covering everything but his eyes, and pointed a firearm at
Miller and Watson, demanded money, and told them to get down on the floor.

Miller further testified appellant took Watson's wallet and Watson's eighty-five
dollars on the counter and demanded the money in the safe. Miller told appellant
that he did not know the combination. Miller testified he told appellant there was
no more money and to just leave. In response, appellant told him and Watson to
walk outside in order for Miller to unlock the gate of the impound lot. Finally,
Miller testified appellant forced them outside at gunpoint and he unlocked the

gate. Prior to leaving, appellant told the men to return to the office, get on the
floor, and not call the police. The men returned to the office as appellant
instructed.

The evidence showed that after appellant left Aristocrat Towing, Miller
called the police and gave the necessary information to the police. Approximately
ten minutes later, Sergeant Daniel Fiore saw the car. Fiore ft)llowed the car and
activated his emergency lights, but the driver did not stop. Detective Conklin
heard the dispatch and drove behind Fiore. At trial, Conklin testified he saw only
one individual in the car. Fiore testified the driver stopped when he reached a
dead-end street in a residential neighborhood. Fiore testified he saw only one
person in the car and he only briefly lost sight of the car during the pursuit.
Moreover, Fiore testified he saw one man jump from the car and run into the
woods. Additionally, Fiore testified he could not identify the driver's face, but he
could identify the driver's clothes.

Officer Jay Keatley with a K-9 unit assisted in the search, and the officers
found appellant hiding in a child's playhouse approximately two hours later. The
playhouse was in the backyard of a house near the abandoned car. In this regard,
Fiore testified that the man in the playhouse was wearing the same jacket as the
driver of the car.

Upon arrest of the appellant, the officers did not find a firearm in
appellant's possession or in the car, but the officers did find a firearm on the other
side of a privacy fence of the backyard where appellant was found hiding.
Conklin testified the firearm was within a foot of the fence line. Miller identified

the firearm found near the fence as the one appellant possessed.
In the car, the officers found an open beer bottle with appellant's
fingerprints on the bottle. A DMV transcript showed that appellant's driving
privilege was suspended at the time of the incident. The dash video from Fiore's
vehicle showing the pursuit was admitted into evidence.
Appellant denied being at Aristocrat Towing, denied robbing Miller and
Watson, and denied being the driver of the car. Appellant testified he was with
his cousin, Eugene Hayes, and an acquaintance by the name of Troy, at a
nightclub. Appellant testified that the three of them left the nightclub with Troy
driving. Appellant testified he was in the passenger seat drinking a beer and fell
asleep. Appellant further testified that when he woke up, he heard Troy yelling
profanities and saw a police vehicle chasing them. He stated that he jumped out
of the car when Troy made a turn. Moreover, appellant testified he later saw Troy
running in the area and that Troy could have discarded the firearm behind the
fence. Appellant testified he ran through various backyards, jumped fences, and
went inside the playhouse because he was very tired. Finally, appellant testified
he woke up because a dog was biting him. Appellant explained it was difficult to
put his hands up because of the dog. Appellant explained that the dash video
showed Troy driving the car.
Appellant explained that his DNA was transferred to the firearm because
he was very sweaty when Troy and Eugene helped him into the car and that Troy
transferred appellant's DNA to the firearm when Troy later touched the firearm.
Appellant admitted he was a convicted felon.
The jury heard the testimony of the witnesses and observed their
demeanor. At the conclusion of the evidence, the jury evaluated the conflicts in

the testimony and necessarily determined that the testimony by the
Commonwealth's witnesses was more credible than appellant's testimony. It was
for the fact finder to determine whether appellant's testimony was self-serving
testimony given in an attempt to conceal his guilt. There was sufficient evidence
supporting the jury's verdict. The Commonwealth's evidence was competent,
was not inherently incredible, and was sufficient to prove beyond a reasonable
doubt that appellant was guilty of two counts of abduction, one count each of
attempted robbery, robbery, eluding, wearing a mask in public, resisting arrest,
four counts of use of a firearm in the commission of a felony, and one count of
driving on a suspended license.

(Id. at 1-6.) On January 22, 2010, the Supreme Court of Virginia refused Hayes's petition for
appeal. (ECF No. 16-2, at 1.) Hayes did not file a petition for a writ of habeas corpus in the
Virginia courts.

On or about February 25, 2016, Hayes filed his § 2254 Petition in this Court.^ (§ 2254
Pet. 9.) In his § 2254 Petition, Hayes asserts the following claim for relief:

Claim One:

"The evidence in its totality was insufficient to establish guilt beyond a

reasonable doubt in violation of my 14"" [A]mendment right to due
process."^ {Id. at 2 (emphasis omitted).)
II. ANALYSIS

A.

Statute of Limitations

Respondent contends that the federal statute of limitations bars Hayes's claim. 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 thejudgment of a statecourt. Specifically, 28 U.S.C.
§ 2244(d) now reads:

^This is the date that Hayes 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).

^"No State shall . . . deprive any person of life, liberty, or property, without due process of
law

" U.S. Const, amend. XIV, § 1.

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 Hayes's petition for appeal on January 22, 2010.
Hayes's convictions became final on Thursday, April 22, 2010, when the time to file a petition
for a writ of certiorari expired. See Hill v. Braxton, 111 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 April 23, 2010, and Hayes had until

April 23,2011 to file his § 2254 Petition.'* Hayes failed to file his § 2254 Petition until February

'* Hayes is not entitled to any statutory tolling under 28 U.S.C. § 2244(d)(2) because he failed to
file any state habeas petitions.

25, 2016, nearly five years after the limitation period expired. Hayes does not suggest any
plausible basis for a belated commencement of the limitation period under 28 U.S.C.
§ 2244(d)(l)(B)-(D) or equitable tolling.

Instead, Hayes argues that his actual irmocence

excuses his failure to file in a timely manner.
C.

Actual Innocencc

The Supreme Court has recognized actual innocence as a basis for overcoming the

expiration of the statute of limitations. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013)
(explaining that "actual innocence, if proved, serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of
limitations"). "Claims of actual innocence, whether presented as freestanding ones or merely as
gateways to excuse a procedural default, should not be granted casually." Wilson v. Greene, 155

F.3d 396, 404 (4th Cir. 1998) (citations omitted). Here, the Court reviews Hayes's arguments
under the more lenient standard for gateway actual innocence claims, because subscribing to
Hayes's actual innocence claim would permit the Court to consider the merits of his otherwise

time-barred habeas petition.
A gateway claim requires a petitioner to present "new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—

that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). "Because such
evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are
rarely successful." Id. If a petitioner meets the burden of producing new, truly reliable evidence

of his or her innocence, the Court then considers "'all the evidence,' old and new, incriminating
and exculpatory, without regard to whether it would necessarily be admitted under 'rules of

admissibility that would govern at trial'" and determines whether the petitioner has met the

standard for a gateway claim of innocence. House v. Bell, 547 U.S. 518, 538 (2006) (quoting

Schlup, 513 U.S. at 327-28). The Court must determine "whether 'it is more likely than not that
no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Sharpe v.

Bell, 593 F.3d 372, 377 (4th Cir. 2010) (quoting Schlup, 513 U.S. at 327-28). "The Court need
not proceed to this second step of the inquiry unless the petitioner first supports his or her claim

with evidence of the requisite quality." Hill v. Johnson, No. 3;09cv659, 2010 WL 5476755, at
*5 (E.D. Va. Dec. 30,2010) (citing Weeks v. Bowersox, 119 F.3d 1342,1352-53 (8th Cir. 1997);

Feaster v. Beshears, 56 F. Supp. 2d 600, 610 (D. Md. 1999)). Moreover, actual innocence
means factual innocence and not just legal insufficiency. Calderon v. Thompson, 523 U.S. 538,
559 (1998) (citation omitted).

Here, Hayes's assertion of actual innocence is not coupled with any new evidence of his
actual innocence. Rather, Hayes supports his assertion of innocence with the same arguments

and based on the same testimony that he presented at trial, which was that he was sleeping, woke
up when he heard the driver yell that the police were following them, jumped out of the car, and
ran through various backyards before he stopped to fall asleep in a child's playhouse. (§ 2254
Pet. 4-5.) He also contends that the police failed to recover his fingerprints fi-om the door of the
tow truck, and that he was "wearing a jacket that was completely different from the one that the
perpetrator allegedly wore." (Id. at 5.) According to Hayes, the victim described the perpetrator

as wearing a camo jacket, but he was wearing a blue jacket that evening, {Id.) Hayes's bare
assertion of innocence and his rehashing of his trial testimony simply fails to excuse the
untimeliness of his § 2254 Petition. See Lowe v. Zook, No. 3:15CV631, 2016 WL 3912035, at
*4 (E.D. Va. July 19, 2016) (citing Hill, 2010 WL 5476755, at *5). Accordingly, Respondent's
Motion to Dismiss (ECF No. 15) will be GRANTED.

III.

OUTSTANDING MOTION

Hayes has also filed a Motion for Discovery.

(ECF No. 8.)

Hayes requests that

Respondent provide copies of any statements or confessions made by Hayes to law enforcement,

as well as "any written reports of autopsies, ballistic tests, fingerprint analyses, handwriting
analyses, blood, urine and breath tests, other scientific reports, and written reports of a physical
or mental examination of the Petition or the alleged victim ...." (Jd. at 1.) Hayes also requests

that Respondent provide "all information of whatever form, source or nature that tends to
exculpate the Petitioner...(Id.) Finally, Hayes requests that the Court direct Respondent "to

conduct testing/retesting on items collected during the investigation of the criminal action ...."
{Id. at 2.) Hayes contends that he requires these items so that he can locate evidence that

demonstrates "a jury would not [have found him] guilty." (Br. Supp. Mot. for Discovery 5, ECF

No. 9.)^
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). Rather than providing specific
allegations to suggest that he is entitled to relief, Hayes appears to desire to engage in a fishing
expedition to locate evidence that he believes would support his claim of innocence. Hayes
therefore fails to demonstrate good cause to warrant discovery. Accordingly, his Motion for
Discovery (ECF No. 8) will be DENIED.

®The Court utilizes the pagination assigned to this submission by the CM/ECF docketing
system.

IV.

CONCLUSION

For the foregoing reasons, Respondent's Motion to Dismiss (EOF No. 15) will be
GRANTED. Hayes's claim will be DISMISSED, and his § 2254 Petition will be DENIED.

Hayes's Motion for Discovery (EOF No. 8) will be DENIED. The action will be DISMISSED.

Acertificate ofappealability will be DENIED.®
An appropriate Final Order shall issue.
Is/

Roderick C. Young

C/

United States Magistrate Judge
Date: February
2017
Richmond, Virginia

® appeal may not be taken from the final order in a § 2254 proceeding unless ajudge issues a
An
certificate of appealability ("CCA"). 28 U.S.C. § 2253(c)(1)(A). A CCA 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)). Hayes fails to meet this standard.

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

L

Richmond Division

FEB - 3 2CI7
HERMAN LEE HAYES, JR.,
CLERK, U.S. DISTfliCT COURT
RICHMOND. VA

Petitioner,

V.

Civil Action No. 3:16CV144

DIRECTOR, VA. DEPT. OF CORR.,

Respondent.
MEMORANDUM OPINION

Herman Lee Hayes, Jr., 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 City of Virginia Beach, 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. Despite receiving Roseboro^ notice as well as an extension of
time, Hayes has not filed a response to the Motion to Dismiss. Hayes has also filed a Motion for
Discovery. (ECF No. 8.) For the reasons set forth below, Respondent's Motion to Dismiss (ECF
No. 15) will be GRANTED, and Hayes's Motion for Discovery (ECF No. 8)will be DENIED.
I. PERTINENT PROCEDURAL HISTORY

On February 13, 2008, a jury convicted Hayes of simple assault or assauh and battery of
a law enforcement officer, two counts of abduction, attempted robbery, robbery, eluding police-

endangerment, four counts of use of a firearm in the commission of a felony, wearing a mask in
public, resisting arrest, and driving on a suspended or revoked operator's license.
Commonwealth v. Hayes, Nos. CR06-1656/CR06-1635, at 1 (Va. Cir. Ct. Sept. 15, 2008).
Following a bench trial on July 29, 2008, Hayes was convicted of possession of a firearm by a
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

violent felon. Id.

On September 15, 2008, the Circuit Court entered final judgment and

sentenced Hayes to a total sentence of 31 years and 36 months. Id. at 2.

Hayes appealed to the Court of Appeals of Virginia, arguing thatthe Circuit Court erred
by: (1) denying his motion to dismiss the abduction charges because the restraint employed was
inherent in the crime of robbery; (2) denying his motion to retest DNA located on the firearm;

and (3) finding that the evidence was sufficient to support his convictions for two counts of
abduction, four coimts of use of a firearm in the commission of a felony, and one count each of

attempted robbery, robbery, eluding, wearing a mask in public, resisting arrest, assault and
battery on a police officer, and driving on a suspended license. (ECF No. 16-1, at 1-4.) The
Court of Appeals denied Hayes's appeal. (Id. at 1.) With respect to the sufficiency of the
evidence, the Court of Appeals stated:

[T]he evidence showed that Paul Miller was employed by Aristocrat Towing and,
on the day in question, he was towing vehicles near the oceanfront. Miller
testified appellant approached him and asked if a certain car had been towed.
Miller checked and told appellant that the car was in the impound lot of Aristocrat
Towing. Miller agreed to drive appellant to Aristocrat Towing. When Miller
arrived at Aristocrat Towing, Philip Watson was standing outside the locked gate.
Miller testified appellant stated he did not have the money to get his car, but he
wanted to get a few items from the car. Miller next testified that he told appellant
he could go to his car to retrieve the items. Miller and Watson then entered the
office to complete the paperwork for Watson's car.

Miller then testified appellant entered the office with a bandana over the
bottom part of his face, covering everything but his eyes, and pointed a firearm at
Miller and Watson, demanded money, and told them to get down on the floor.
Miller further testified appellant took Watson's wallet and Watson's eighty-five
dollars on the counter and demanded the money in the safe. Miller told appellant
that he did not know the combination. Miller testified he told appellant there was

no more money and to just leave. In response, appellant told him and Watson to
walk outside in order for Miller to unlock the gate of the impound lot. Finally,

Miller testified appellant forced them outside at gunpoint and he unlocked the
gate. Prior to leaving, appellant told the men to return to the office, get on the
floor, and not call the police. The men returned to the office as appellant
instructed.

The evidence showed that after appellant left Aristocrat Towing, Miller
called the police and gave the necessary information to the police. Approximately

ten minutes later, Sergeant Daniel Fiore saw the car. Fiore followed the car and
activated his emergency lights, but the driver did not stop. Detective Conklin
heard the dispatch and drove behind Fiore. At trial, Conklin testified he saw only
one individual in the car. Fiore testified the driver stopped when he reached a
dead-end street in a residential neighborhood. Fiore testified he saw only one

person in the car and he only briefly lost sight of the car during the pursuit.
Moreover, Fiore testified he saw one man jump fi"om the car and run into the

woods. Additionally, Fiore testified he could not identify the driver's face, but he
could identify the driver's clothes.

Officer Jay Keatley with a K-9 unit assisted in the search, and the officers
found appellant hiding in a child's playhouse approximately two hours later. The
playhouse was in the backyard of a house nearthe abandoned car. In this regard,
Fiore testified that the man in the playhouse was wearing the same jacket as the
driver of the car.

Upon arrest of the appellant, the officers did not find a firearm in
appellant's possession or in the car, butthe officers did find a firearm on the other
side of a privacy fence of the backyard where appellant was found hiding.
Conklin testified the firearm was within a foot of the fence line. Miller identified

the firearm found near the fence as the one appellant possessed.
In the car, the officers found an open beer bottle with appellant's

fingerprints on the bottle. A DMV transcript showed that appellant's driving
privilege was suspended at the time of the incident. The dash video fi-om Fiore's
vehicle showing the pursuit was admitted into evidence.
Appellant denied being at Aristocrat Towing, denied robbing Miller and
Watson, and denied being the driver of the car. Appellant testified he was with
his cousin, Eugene Hayes, and an acquaintance by the name of Troy, at a
nightclub. Appellant testified that the three of them left the nightclub with Troy
driving. Appellant testified he was in the passenger seat drinking a beer and fell
asleep. Appellant fiirther testified that when he woke up, he heard Troy yelling
profanities and saw a police vehicle chasing them. He stated that he jumped out
of the car when Troy made a turn. Moreover, appellant testified he later saw Troy
running in the area and that Troy could have discarded the firearm behind the
fence. Appellant testified he ran through various backyards, jumped fences, and
went inside the playhouse because he was very tired. Fmally, appellant testified
he woke up because a dog was biting him. Appellant explained it was difficult to
put his hands up because of the dog. Appellant explained that the dash video
showed Troy driving the car.

Appellant explained that his DNA was transferred to the firearm because
he was very sweaty when Troy and Eugene helped him into the car and that Troy
transferred appellant's DNA to the firearm when Troy later touched the firearm.
Appellant admitted he was a convicted felon.
The jury heard the testimony of the witnesses and observed their
demeanor. At the conclusion of the evidence, the jury evaluated the conflicts in

the testimony and necessarily determined that the testimony by the
Commonwealth's witnesses was more credible than appellant's testimony. It was
for the fact finder to determine whether appellant's testimony was self-serving
testimony given in an attempt to conceal his guilt. There was sufficient evidence
supporting the jury's verdict. The Commonwealth's evidence was competent,
was not inherently incredible, and was sufficient to prove beyond a reasonable
doubt that appellant was guilty of two counts of abduction, one count each of
attempted robbery, robbery, eluding, wearing a mask in public, resisting arrest,
four counts of use of a firearm in the commission of a felony, and one count of
driving on a suspended license.
{Id. at 1-6.) On January 22, 2010, the Supreme Court of Virginia refused Hayes's petition for
appeal. (ECF No. 16-2, at 1.) Hayes did not file a petition for a writ of habeas corpus in the
Virginia courts.

On or about February 25, 2016, Hayes filed his § 2254 Petition in this Court.^ (§ 2254
Pet. 9.) In his § 2254 Petition, Hayes asserts the following claim for relief:
Claim One:

"The evidence in its totality was insufficient to establish guilt beyond a

reasonable doubt in violation of my 14"^ [A]mendment right to due
process."^ {Id. at2 (emphasis omitted).)
11. ANALYSIS
A.

Statute of Limitations

Respondent contends that the federal statute of limitations bars Hayes's claim. 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:

^This is the date that Hayes 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).

^"No State shall . . . deprive any person of life, liberty, or property, without due process of
law...." U.S. Const, amend. XIV, § 1.

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 fi-om 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 caseson 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 Hayes's petition for appeal on January 22, 2010.
Hayes's convictions became final on Thursday, April 22, 2010, 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 ruiming 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 beganto run on April 23, 2010, and Hayes had until

April 23,2011 to file his § 2254 Petition.'* Hayes failed to file his § 2254 Petition until February
'' Hayes is not entitled to any statutory tolling under 28 U.S.C. § 2244(d)(2) because he failed to
file any state habeas petitions.

25, 2016, nearly five years after the limitation period expired. Hayes does not suggest any
plausible basis for a belated commencement of the limitation period under 28 U.S.C.
§ 2244(d)(l)(B)-(D) or equitable tolling.

Instead, Hayes argues that his actual innocence

excuses his failure to file in a timely manner.
C.

Actual Innocence

The Supreme Court has recognized actual innocence as a basis for overcoming the
expiration of the statute of limitations. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013)

(explaining that "actual innocence, if proved, serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of

limitations"). "Claims of actual innocence, whether presented as freestanding ones or merely as
gateways to excuse a procedural default, should not be granted casually." Wilson v. Greene, 155
F.3d 396, 404 (4th Cir. 1998) (citations omitted). Here, the Court reviews Hayes's arguments

under the more lenient standard for gateway actual innocence claims, because subscribing to
Hayes's actual innocence claim would permit the Court to consider the merits of his otherwise
time-barred habeas petition.
A gateway claim requires a petitioner to present "new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). "Because such
evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are
rarely successful." Id. If a petitioner meets the burden of producing new, truly reliable evidence

of his or her innocence, the Court then considers "'all the evidence,' old and new, incriminating
and exculpatory, without regard to whether it would necessarily be admitted under 'rules of
admissibility that would govern at trial'" and determines whether the petitioner has met the

standard for a gateway claim of innocence. House v. Bell, 547 U.S. 518, 538 (2006) (quoting
Schlup, 513 U.S. at 327-28). The Court must determine "whether 'it is more likely than not that
no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Sharpe v.
Bell, 593 F.3d 372, 377 (4th Cir. 2010) (quoting Schlup, 513 U.S. at 327-28). "The Court need

not proceed to this second step of the inquiry unless the petitioner first supports his or her claim

with evidence of the requisite quality." Hill v. Johnson, No. 3:09cv659, 2010 WL 5476755, at
*5 (E.D. Va. Dec. 30,2010) (citing Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997);
Feaster v. Beshears, 56 F. Supp. 2d 600, 610 (D. Md. 1999)). Moreover, actual innocence
means factual innocence and not just legal insufficiency. Calderon v. Thompson, 523 U.S. 538,
559 (1998) (citation omitted).

Here, Hayes's assertion of actual irmocence is not coupled with any new evidence of his
actual innocence. Rather, Hayes supports his assertion of innocence with the same arguments
and based on the same testimony that he presented at trial, which was that he was sleeping, woke

up when he heard the driver yell that the police were following them,jumped out of the car, and
ran through various backyards before he stopped to fall asleep in a child's playhouse. (§ 2254

Pet. 4-5.) He also contends that the police failed to recover his fingerprints from the door of the
tow truck, and that he was "wearing a jacket that was completely different from the one that the
perpetrator allegedly wore." {Id. at 5.) According to Hayes, the victim described the perpetrator
as wearing a camo jacket, but he was wearing a blue jacket that evening. (Id.) Hayes's bare
assertion of innocence and his rehashing of his trial testimony simply fails to excuse the
untimeliness of his § 2254 Petition. See Lowe v. Zook, No. 3:15CV631, 2016 WL 3912035, at

*4 (E.D. Va. July 19, 2016) (citing Hill, 2010 WL 5476755, at *5). Accordingly, Respondent's
Motion to Dismiss (ECF No. 15) will be GRANTED.

III.

OUTSTANDING MOTION

Hayes has also filed a Motion for Discovery.

(ECF No. 8.)

Hayes requests that

Respondent provide copies of any statements or confessions made by Hayes to law enforcement,

as well as "any written reports of autopsies, ballistic tests, fingerprint analyses, handwriting
analyses, blood, urine and breath tests, other scientific reports, and written reports of a physical

or mental examination of the Petition or the alleged victim

" {Id. at 1.) Hayes also requests

that Respondent provide "all information of whatever form, source or nature that tends to
exculpate the Petitioner

" {Id.) Finally, Hayes requests that the Court direct Respondent "to

conduct testing/retesting on items collected during the investigation of the criminal action ...

{Id. at 2.) Hayes contends that he requires these items so that he can locate evidence that
demonstrates "a jury would not [have found him] guilty." (Br. Supp. Mot. for Discovery 5, ECF

No. 9.)^
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).

Rather than providing specific

allegations to suggest that he is entitled to relief, Hayes appears to desire to engage in a fishing
expedition to locate evidence that he believes would support his claim of innocence. Hayes

therefore fails to demonstrate good cause to warrant discovery. Accordingly, his Motion for
Discovery (ECF No. 8) will be DENIED.

®The Court utilizes the pagination assigned to this submission by the CM/ECF docketing
system.
8

IV.

CONCLUSION

For the foregoing reasons, Respondent's Motion to Dismiss (ECF No. 15) will be
GRANTED. Hayes's claim will be DISMISSED, and his § 2254 Petition will be DENIED.

Hayes's Motion for Discovery (ECF No. 8) will be DENIED. The action will be DISMISSED.

Acertificate ofappealability will be DENIED.®
An appropriate Final Order shall issue.

Isl 'V

Roderick C. Young

6^

United States Magistrate Judge
Date: February 3_» 2017
Richmond, Virginia

^An appeal may not be taken from the final order ina § 2254 proceeding unless ajudge issues a
certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(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 marmer 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)). Hayes fails to meet this standard.