Nedd v. Clarke

Filing 16

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 5/25/2017. Copy to Pro Se Petitioner. (jsmi, )

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

JOWARSKI RUSSELL NEDD,
Petitioner,
V.

Civil Action No. 3:16CV948

HAROLD W. CLARKE, DIRECTOR,

Respondent.
MEMORANDUM OPINION

Jowarksi Russell Nedd, a Virginia state prisoner proceeding pro se and in forma

pauperis, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his
conviction in the Circuit Court of the County of Accomack, Virginia ("Circuit Court") for capital

murder, robbery, and use of a firearm in commission of a felony and resuhing life sentence.

Respondent moves to dismiss the § 2254 Petition, inter alia, as barred by the statute of
limitations. Nedd has responded. For the reasons stated below, the Motion to Dismiss will be
GRANTED.

I. PROCEDURAL HISTORY

Ajury convicted Nedd of capital murder, robbery, and use of a firearm in the commission

of a felony. The Court sentenced Nedd to life in prison on the murder charge, fifteen years in

prison on the robbery charge, and three years in prison on the use of a firearm charge, with all
sentences to run consecutive.

Commonwealth v. Nedd, Nos. 09CR051-01 through -02 &

09CR086, at 1-2 (Va. Cir. Ct. July 1, 2010). Nedd appealed. On February 9, 2011, the Court of

Appeals of Virginia denied Nedd's petition for appeal. (ECF No. 13-1, at 1.) On December 6,

2011, the Supreme Court of Virginia dismissedNedd's subsequent petition for appeal. (ECF No.
13-2.)

On November 22, 2016,' Nedd filed his § 2254 Petition in this Court. In his § 2254

Petition, he asserts the following grounds for relief: ^
Claim One:

"Petitioner was denied the effective assistance of counsel when counsel

failed to conveyto petitioner a formal plea offered by the Commonwealth,
place it on the official record or otherwise explain its significance."
(§ 2254 Pet. 3.)

Claim Two:

"Petitioner was denied a fundamental right to due process in the selection

of a jury free from bias and partiality and the trial court denied this right
when it refused to grant a motion for change of venue." {Id. at 7.)

Claim Three: "My constitutional right to due process was denied when the trial court
refused to allow the sequestration of prospective jurors during voir dire."
(Jd. at 11.)

Claim Four:

"My constitutional right to due process was denied when the trial court
refused to allow two instructions be given to the jury for consideration."
{Id at 12.)

Claim Five:

"The evidence in its totality was insufficient to establish guilt beyond a
reasonable doubt, which violated my Fifth, Sixth, and Fourteenth
Amendments to the U.S. Constitution." {Id. at 14.)
II. ANALYSIS

A.

Statute of Limitations

Respondent contends that the federal statute of limitations bars Nedd'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
' This is the date that Nedd states that his § 2254 Petition was deposited in the prison

mailing system (§ 2254 Pet. 21), and the Court deems this as the date the § 2254 Petition was
filed. See Houston v. Lack, 487 U.S. 266, 276 (1988).

^ The Court corrects the capitalization and removes emphasis and underlining in the
quotations from Nedd's submissions.

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.

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.
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

Nedd's judgment became final on Monday, March 5, 2012,^ 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
^While Nedd filed a motion for extension of time and an untimely petition for rehearing,

the Supreme Court of Virginia denied the motionfor extensionof time and dismissedthe petition
for rehearing as untimely filed. Nedd v. Commonwealth, No. 111187, at 1 (Va. Feb. 10, 2012);
Nedd V. Commonwealth, No. 111187, at 1 (Va. Mar. 8, 2012). This untimely petition for
rehearing does not extend the date of the finality of Nedd's judgment. Cf. United States v.

Bendolph, 409 F.3d 155, 158-59 & n.5 (3rd Cir. 2005) (explaining that untimely petition for writ
of certiorari does not delay the date on which conviction became final under § 2244(d)(1)(A));
United States v. Segers, 271 F.3d 181, 184-86 (4th Cir. 2001) (explaining that neither an
unsuccessful request for extension of time to file a petition for writ of certiorari nor a petition for
rehearing delays the date of finality of judgment and commencementof the limitations period).

completed or when the time for seeking direct review has expired . . .

(citing 28 U.S.C.

§ 2244(d)(1)(A))); see Sup. Ct. R. 13(1) (petition for certiorari should be filed within ninety days

of entry of judgment by state court of last resort or of the order denying discretionary review).
The limitation period began to run on March 6, 2012 and expired on March 6, 2013. Nedd failed

to file his § 2254 Petition until November 2016, more than three and a half years after the

limitation period expired."^ Accordingly, the § 2254 Petition is barred unless Nedd demonstrates
that he is entitled 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. Nedd advances two

arguments to excuse his tardy filing: (1) that he is actually innocent and, (2) that a state created
impediment prevented him from filing. As discussed below, both arguments lackmerit.
C.

Actual Innocence

In his § 2254 Petition, Nedd contends that "the statute of limitations . . . does not apply

due to my claim that I am actually innocent of the crime for which I was convicted." (§ 2254

Pet. 18.) 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 irmocence, 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 Nedd's arguments

^ Nedd also fails to demonstrate that he ever properly filed a petition for writ of habeas
corpus in the state court. See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (explaining that to qualify
for equitable tolling an application must be "properly filed" in accordance with the rules of the
court for such submissions). Indeed, the Circuit Court noted in October 2015 that a submission
labeled, "Petition for Writ of Habeas[,] . . . ha[d not] been properly prepared." (ECF No. 15-6,
atl.)

under the more lenient standard for gateway actual innocence claims, because subscribing to
Nedd'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 producingnew, 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).

Instead of providing new, reliable evidence to support a claim of actual innocence, Nedd
states, that "in the claims presented arguing the reasoning's [sic] why an involuntary plea was

entered, I have demonstrated a colorable showing of actual innocence." (§ 2254 Pet. 19.) While

Nedd fails to expand on this statement, the Court presumes that he refers to Claim Five wherein

he alleges that insufficient evidence existed to convict him of the charges. In this section, Nedd
provides no new evidence, but simply argues that he could not be convicted on the evidence that
was presented at trial because the only evidence of his guilt "was that [Nedd] was the last person
to have been seen in the presence of the victim." {Id. at 16.) Nedd has simply failed to direct the

Court to any new, reliable evidence of his innocence.

See Calderon, 523 U.S. at 559

(emphasizing that new, reliable evidence of innocence is a "rarity"). Thus, the Court need not

proceed to the second part of the inquiry. Accordingly, Nedd fails to establish that his alleged
actual innocence permits the Courtto reachthe merits of his time-barred § 2254 Petition.
Moreover, compelling evidence exists of Nedd's guilt of capital murder, robbery, and use
of a firearm in the commission of a felony. As the Court of Appeals of Virginia aptly found in
reviewing the sufficiency of the evidence:
The victim died as a result of a fatal gunshot wound to the head. He
was last seen alive on the afternoon of August 14,2008, and his decomposed

body was found on August 19, 2008. The medical examiner could not
determine a date of death. The victim's pants pockets were turned inside out
when he was found. Forensic evidence showed that the victim was shot with

a .357 magnum handgun that he had purchased. Appellant sold this same
.357 magnum gun to Eddie Savage on August 14, 2008. Appellant told
Eddie Savage he found the gun, he had fired the gun, and it was loud. Eddie
Savage testified he had previously purchased another gun from appellant and
he saw appellant retrieve that gun from a trailer belonging to the victim.
Appellant worked for the victim, a contractor.
At the time of the incident, appellant resided with Eddie Savage and
his sister, Cleterria Savage. Eddie Savage testified that on August 14, 2008,
appellant telephoned and asked for a ride home from the victim's house.
Cleterria Savage, appellant's girlfriend at the time, testified appellant made
the call sometime after 5:00 p.m. Eddie Savage and his sister retrieved
appellant from the victim's residence. Appellant had boxes and trash bags
containing clothing, paper towels, laundry detergent, and shoes. Appellant
told Cleterria Savage that the victim had given him the items. Appellant
also had a "wad of money" that he said he had found at a location where the

victim had fallen on the previous day. Cleterria Savage testified appellant
possessed $3,800 in cash. Eddie Savage stated that on August 20, 2008,
appellant telephoned him and said he needed to get the guns out of the house
because the police were coming to search the house. Appellant fled to
Louisiana after giving the police a statement.
The victim was in the process of moving his residence, and a trailer
located at the construction site contained many unpacked boxes, including
boxes of clothing. A witness testified appellant was assisting the victim with
moving the boxes on the morning of August 14, 2008. This witness tried to
locate the victim in person and by telephone at about 8:00 p.m. on that date,
and she could not reach him. She never heard from the victim again. An
employee of a building supply store testified she sold the victim some
supplies at about 4:00 p.m. on August 14,2008, and he paid for the items in

cash. She stated he 'fulled out a big wad of cash" when paying for the
items.

"[T]he 'combined force of many concurrent and related
circumstances. .. may lead a reasonable mind irresistibly to a conclusion.'"
Juniper v. Commonwealth, 271 Va. 362, 416, 626 S.E.2d 383, 418 (2006)
(quoting Chichester v. Commonwealth, 248 Va. 311, 329, 448 S.E.2d 638,
650 (1994)). If, based on the Commonwealth's evidence the fact finder
justifiably could have excluded all reasonable hypotheses of innocence, or
determined that any possible hypothesis of innocence was less than
reasonable, then we must affirm. We defer to the fact finder because the
inferences to be drawn from proven facts are the province of the fact finder so
long as they are reasonable and justified.
See Higginbotham v.
Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975).
The Commonwealth's evidence placed appellant with the victim on the

date the victim was last seen alive. In addition, appellant was in possession of
items belonging to the victim, including the murder weapon, on the evening
of the last date the victim was seen alive. When appellant was developed as a
suspect in the case, he advised Eddie Savage that they needed to get rid of the
.357 magnum gun he had sold to Eddie Savage because the police were going
to search their residence. In addition, appellant had a large amount of cash on
the last date the victim was seen alive—also the same date the victim was seen

with a large amount of cash. The victim's pants pockets were inside out when
his body was discovered. Furthermore, appellant fled the state after giving
the police a statement. "Flight following the commission of a crime is
evidence of guilt. . .." Clagett v. Commonwealth, 252 Va. 79, 93, 472 S.E.2d
263,271 (1996).

Whether a hypothesis of innocence is reasonable is a question of fact,
Cantrell v. Commonwealth, 1 Wa. App. 269, 290, 373 S.E.2d 328, 339 (1988),
and a finding by the jury is binding on appeal unless plainly wrong or without
evidence to support it, Martin, 4 Va. App. at 443, 358 S.E.2d at 418. Viewed
in the light most favorable to the Commonwealth, the circumstantial evidence
was sufficient to prove beyond a reasonable doubt that appellant committed
the charged offenses.

(ECF No. 13-1, at 3-4.) Contrary to Nedd's weak claim that he is innocent, the evidence clearly
establishes his guilt of capital murder, robbery, and use of a firearm in the commission of a

felony. Nedd fails to demonstrate that "it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt." Sharpe^ 593 F.3d at "ill (quoting

Schlup, 513 U.S. at 327-28). Accordingly, as previously explained, Nedd's purported actual
innocence fails to allow the Court to reach the merits of his time-barred § 2254 Petition.

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) (quotingLeyva v. Yates, No. CV 07-8116-PA, 2010 WL 2384933, at *3 (C.D.

Cal. 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

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)).

For the first time in his Reply, Nedd asserts that he is entitled to belated commencement

of the limitation period under 28 U.S.C. § 2244(d)(1)(B) because "the state created an

impediment to timely filing." (Reply 4, ECF No. 15.) In his Reply, he provides a timeline of the
alleged actions he took in state court with regard to filing a petition for a writ of habeas corpus.
Nedd claims that "he submitted a habeas corpus petition to the Circuit Court on November 22,

2012." {Id. at 1.) According to Nedd, "[a]fter receiving no response from the court on this

petition, I inquired from the clerk, by letter dated November 12, 2013, into the status of the
petition and requested information . . . [but t]he court did not reply to this letter." {Id. at 2.)
Nedd then waited until June and July 2015, more than a year and half after his initial query, to

inquire again about his habeas petition. {Id.) Nedd contends that he never received a response.
{Id.)

In September 2015, Nedd filed a Motion for Judgment in the Circuit Court. {Id.) Nedd
received the following response on October 7, 2015: "Our office has received your Petition for
Writ of Habeas and a Motion for Judgment, neither of these documents have been properly

prepared for the Court.

We no longer file Motion for Judgments.

I have enclosed the

instructions for filing a Writ of Habeas, please review it and resubmit your petition." (ECF
No. 15-6, at 1.) Nedd apparently did not resubmit a habeas petition as instructed. (Reply 3.)
Instead, in June 2016, Nedd submitted a Petition for a Writ of Mandamus in the Supreme

Court of Virginia complaining about the Circuit Court's alleged inaction. {Id.) On July 20,
2016, the Supreme Court of Virginia responded as follows:
This office has been in contact with the Accomack Circuit Court Clerk's

office, which has advised this office that it has no record of receiving a habeas

corpus petition from you in 2012. The clerk's office pointed out that the address
that you provided in your July 31, 2015 letter as being the address to which you
mailed your petition was actually the address of the Accomack General District
Court. This office thus contacted the general district court which has no record of

having received a habeas corpus petition from you (the general district court
advised us that misaddressed pleadings are forwarded on to the circuit court).
(ECFNo. 15-9, at 1.)

It is unclear why Nedd believes these communications demonstrate a state-created

impediment to filing his federal habeas petition. First, Nedd fails to identify any State action that
violated the Constitution. To the extent that Nedd faults the Circuit Court for failing to file a

petition that it never received, or for failing to file a motion that did not comply with Circuit
Court rules, he provides no explanation with respect to how these actions were unconstitutional.
Thus, for this reason alone, he fails to demonstrate the requisite unconstitutional state action to
satisfy § 2244(d)(1)(B).

Nedd also fails to demonstrate that such action actually prevented him from timely filing

a § 2254 Petition. See Ramirez v. Yates, 571 F.3d 993, 1001 (9th Cir. 2009) (emphasizing that
state action must "altogether prevent[ ] [a petitioner] from presenting his claims in any form, to

any court" to trigger § 2244(d)(1)(B)). To the contrary, Nedd's own inaction caused the late

filing of his § 2254 Petition. Nedd claims he filed a state habeas petition in November of 2012.
Nedd failed to follow up about the Circuit Court's receipt of the petition until a year later in
November 12, 2013. The federal limitations period expired on March 6, 2013. Nedd made no

effort to inquire about his alleged state habeas petition between November 2012 and March 6,
2013. Moreover, to the extent he had not received any indication from the Circuit Court about
the receipt of his petition Nedd 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, 2010 WL 2928590, at *3 n.lO (citing Pace v. DiGuglielmo, 544 U.S. 408, 416

(2010)); cf. Madden v. Thaler, 521 F. App'x 316, 321 (5th Cir. 2013) (finding that the petitioner
10

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 from

filing [a § 2254 petition]"). Nedd's § 2254 Petition is barred by the statute of limitations and
will be DENIED.

III.

CONCLUSION

For the foregoing reasons, Respondent's Motion to Dismiss (ECF No. 11) will be
GRANTED. Nedd's claims will be DISMISSED and his § 2254 Petition will be DENIED.

The action will be DISMISSED. Acertificate ofappealability will be DENIED.^
An appropriate Final Order shall issue.

.

Date:

JohnA. Gibney, Jr. .

(1

United States Distridt J

Richmona, Virginia

^An appeal may not be taken from the final order in a § 2254 proceeding unless a judge
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 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)). Nedd fails to meet this standard.
11