Parrish v. Zook

Filing 19

MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 5/31/17. (Copy mailed to Petitioner Parrish)(jtho, )

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

QUINTEN 1). PARRISH,

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MAY

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1 2017

CLERK. U.S. DISTRICT COURT
RICHMOND. VA

Petitioner.
Civil Action No.3:16CV817

V.

DAVID W. ZOOK,

Respondent.
MEMORANDUM OPINION

Quinten D. Parrish, a Virginia state prisoner proceeding pro se, brings this petition

pursuant to 28 U.S.C. § 2254 C'§ 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. (ECF No. 10.) Parrish has filed a Response. (ECF No. 13.)
For the reasons set forth below, the Motion to Dismiss (ECF No. 10) will be GRANTED.
I. PERTINENT PROCEDURAL HISTORY

Parrish was convicted in the Circuit Court of first degree murder, use of a firearm in the

commission of a felony, and possession of a firearm by a convicted felon. (ECF No. 11, at 1.)

The Circuit Court sentenced Parrish to life plus ten years of imprisonment. (Id)

Parrish

appealed. (Id) On October 25, 2000, the Court of Appeals of Virginia dismissed his appeal.
(Id)

A. State Habeas

On November 27, 2000, Parrish filed a petition for a writ of habeas corpus with the

Circuit Court wherein he sought a delayed appeal. {Id. at 1-2.) On December 4, 2001, the
Circuit Court dismissed the petition. {Id. at 2.)
B. Motions to Vacate

On May 18, 2012, Parrish filed a Motion to Vacate in the Circuit Court.

Motion to

Vacate 1, Commonwealth v. Parrish, No. CR98F00329 (Va. Cir. Ct. filed May 18,2012).'
On September 14, 2014, Parrish filed a Motion to Vacate Void Judgment in the Circuit
Court. Motion to Vacate Void Judgment 1, Commonwealth v. Parrish, Nos. CR98F00329,

CR98F00325, CR98F00330 (Va. Cir. Ct. filed Sept. 14, 2014). By Orderentered on September
25, 2014, the Circuit Court denied the Motion to Vacate Void Judgment. Commonwealth v.
Parrish, Nos. CR98F00329, CR98F00325, CR98F00330 (Va. Cir. Ct. Sept. 25, 2014).
Parrish appealed the denial of his Motion to Vacate Void Judgment. (ECF No. 11-4, at

1.) On June 23, 2015, the Supreme Court of Virginia, citing Supreme Court of Virginia Rule
5:17(c)(l)(iii), dismissed the appeal. {Id.) The Supreme Court noted that Parrish's assignments

of error failed to address the Circuit Court's ruling from which an appeal was sought as to three
assignments of error, and the Supreme Court refused the fourth assignment of error. {Id.)
C. § 2254 Petition

On September 1, 2016, Parrish filed his § 2254 Petition with this Court. (§ 2254 Pet.

16.)^ In his §2254 Petition, Parrish asserts the following claims for relief:

' Because Parrish wrote the wrong case number on this motion, the Court employs the case
number of the Circuit Court's judgment which Parrish sought to attack and that was attached to
the Motion to Vacate. The record does not reveal whether the Circuit Court explicitly denied the
May 18, 2012 Motion to Vacate.

Claim One

"Conviction obtained in violation of the Due Process [Clause] of the U.S.
Constitution, Fourteenth Amendment where my guilty plea [was] induced
by an agreement not fully disclosed to the court prior to the court's
acceptance of the plea rendering it involuntary and therefore void." (W at
6.)

Claim Two

"Conviction obtained in violation of the Due Process Clause of the U.S.

Constitution, Fourteenth Amendment because the trial judge lacked the

authority to allow the Commonwealth Attorney to move to [nolle] process
charges after sentencing ...." {Id. at 8.)
II. ANALYSIS

A. Statute of Limitations

Respondent contends that the federal statute of limitations bars Parrish'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:

\.

A l-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)

(D)

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
e.xercise of due diligence.

*This is the date the Parrish swears he gave the § 2254 Petition to prison officials for mailing to
the Court and the date the Court deems the § 2254 Petition filed. Houston v. Lack, 487 U.S. 266,
276 (1988). The Court corrects the capitalization and punctuation in the quotations from
Parrish's submissions.

2.

The lime 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 Court of Appeals of Virginia dismissed Parrish's appeal on October 25, 2000.
Parrish's judgment became final on Friday. November 24. 2000, when the time to pursue an

appeal to the Supreme Court of Virginia expired. See Hill v. Braxton, 277 F.3d 701, 704 (4th
Cir. 2002) C'[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))); Va. Sup. Ct. R. 5:14(a) (requiring that, in appeals from the Court of

Appeals of Virginia to the Supreme Court of Virginia, the notice of appeal must be filed within
thirty (30) days). The limitation period began to run on November 25, 2000 and ran for two (2)
days until Parrish filed his state habeas petition on November 27, 2000.

See 28 U.S.C.

§ 2244(d)(2)

C. Statutory Tolling

The limitation period remained tolled until December 4, 2001, when the Circuit Court
dismissed the state petition for a writ of habeas corpus. At that time, Parrish had only 363 days
remaining of the federal limitation period. Therefore, Parrish needed to file his § 2254 Petition

by Monday, December 2, 2002, for it to be filed within the limitation period. Nevertheless,
Parrish failed to file his § 2254 Petition until September 1, 2016, more than a decade after the

limitation period expired. Thus, the statute of limitations bars Parrish's § 2254 Petition.^

^Neither Parrish nor the record suggests any plausible basis for belated commencement under 28
U.S.C. §2244(d)(l)(B)-(D).

Parrish vaguely suggests that his § 2254 Petition is timely because he filed it within one
year of the Virginia courts having addressed his Motion to Vacate.

(§ 2254 Pet. 14-15.)

However, the Motion to Vacate had no impact on the running of the statute of limitation because

Parrish filed it years after the limitation period expired. See Deville v. Johnson.

No. l: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)). Undeterred, Parrish contends that his § 2254

Petition is timely because he is entitled to equitable tolling of the limitation period. As explained
below, Parrish's arguments in this regard lack merit.
D. Equitable Tolling

The Supreme Court has "made clear that a 'petitioner' is 'entitled to equitable tolling'
only if he shows '(l)thal 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. Archulela, 525 F.3d 925, 928 (10th Cir. 2008) (quoting
Brown v. Barrow, 512 F.3d 1304, 1307 (11th 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, Parrish 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 Irwiii v. Dep't of Veterans Affairs, 498 U.S. 89, 96

(1990); Fisher v. Johnson, 174 F.3d 710, 716 (5lh Cir. 1999))). Instead, the record shows that
Parrish's lack of diligence led to the delay in filing his § 2254 Petition.

Initially, Parrish contends that the Court should toll the limitation period because he did
not have the assistance of counsel after the conclusion of his direct appeal. (ECF No. 13, at 3.)

Ignorance of the law and lack of legal assistance upon the conclusion of direct appeal are not
e.xtraordinary circumstances that warrant the tolling of the limitation period. See UnitedStates v.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (citing Cross-Bey a'. Gammon, 322 F.3d 1012, 1015 (8lh

Cir. 2003); United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002); Delaney v. Matesanz, 264
F.3d 7, 15 (1st Cir. 2001); Marsh v. Scares, 223 F.3d 1217, 1220 (10th Cir. 2000)).
Next, Parrish contends that the Court should toll the limitation period because he did not

have access to the transcripts frotn his criminal case. "[TJhere is no requirement that a habeas

petitioner enumerate in his petition every fact which supports a ground for relief. Rather, Rule
2(c) of the Rules Governing § 2254 Cases provides that a petitioner need only 'set forth in
summary form the facts supporting each of the grounds' specified in the petition." Lloyd v.
VanNatta, 296 F.3d 630, 633 (7lh Cir. 2002). Parrish fails to demonstrate that lack of access to

his transcripts prevented him from setting forth in summary form the facts that support his
claims. See O'Neill v. Dir., Virginia Dep't of Corr., No. 3:10CV157, 2011 WL 3489624, at *4

(E.D. Va. Aug. 9, 2011) (citing Waldron-Ramsey \\ Pacholke, 556 F.3d 1008, 1013-14 (9th Cir.
2009); Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006); United States v. Butler, 178 F.
App'x 327, 327 (4th Cir. 2006); Weihly v. Kaiser, 50 F. App'x 399. 403 (10th Cir. 2002)).

Finally, Parrish makes the opaque argument that because he is challenging the Circuit
Court's subject matter jurisdiction, the federal statute of limitations does not apply because in the

Virginia courts "a void judgment can be attacked at any time, and in any manner.. .(ECF

No. 13, at 3.) "To the extent that [Parrish] suggests that claims asserting a void judgment for
lack of jurisdiction are not subject to the federal statute of limitations pertaining to 28 U.S.C.
§ 2254 petitions, he is wrong." Jones v. Virginia, No. 3:14CV343-HEH, 2015 WL 4223270, at
*4 (E.D. Va. July 10, 2015) (citation omitted), appeal dismissed, 623 F. App'x 99 (4th Cir.
2015); see Baines v. Watson, No. CIV.A. 3:08CV459, 2009 WL 1209044, at *3 (E.D. Va. May
1, 2009) (citations omitted).

Because Parrish fails to demonstrate any basis for tolling the limitation period, the action
will be DISMISSED as barred by the statute of limitations.
III.

CONCLUSION

For the foregoing reasons. Respondent's Motion to Dismiss (ECF No. 10) will be
GRANTED. Parrish's claims will be DISMISSED, and his § 2254 Petition will be DENIED.

The action will be DISMISSED. A certificate of appealability will be DENIED.

An appropriate Final Order shall issue.

/s/' /

,

Roderick C. Young
United States Magistrate Jud
Date: May
.,2017
Richmond, Virginia