Thomas v. Clarke

Filing 13

MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 10/10/2017. Memorandum Opinion was mailed to Petitioner. (sbea, )

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division OCT I I 2017 CLERK. U.S. DISTRICT COURT SILVESTER ALLEN THOMAS, ICHMONO V, Petitioner, v. Civil Action No. 3:16CV962 HAROLD W. CLARKE, Respondent. MEMORANDUM OPINION Silvester Allen proceeding pro se, § 2254 convictions Virginia alia, brings ("§ 2254 in Circuit the governing ground that federal habeas Thomas has responded. As Court No. for 1) the challenging City Richmond, the one-year petitions bars statute the of limitations 2254 § inter Petition. PROCEDURAL HISTORY Procedural History relevant here, a counts of capital murder, grand jury charged Thomas three counts of use of a commission of a felony, and one count of robbery. 1 1 of his The matter is ripe for disposition. I. A. ECF Respondent moves to dismiss, ("Circuit Court") . on prisoner state Virginia this petition pursuant to 28 U.S.C. Petition," the a Thomas, with two firearm in At some point The grand jury also charged Thomas with a third count of capital murder, one count of malicious wounding, one count of unlawful wounding, one count of abduction, a second count of before Thomas' s eventual guilty plea, the capital murder counts the Commonwealth reduced to first-degree murder. Indictment at 1-2, Commonwealth v. Thomas, No. CROl-1742-F (Va. Cir. Ct. Thomas, No . 1 o-1 , Dec. No. 10, 2001); CROl-1764-F at 1) . Indictment (Va. Cir. On February 4, Ct. 2002, at 1, Dec. Commonwealth 10, 2001) v. (ECF i Thomas pled guilty as follows: It is the agreement of the parties hereto that upon the entry of a plea of GUILTY by the defendant to two charges of Murder in the first degree, one charge of robbery, and three charges of using a firearm in the commission of a felony, the Attorney for the Commonwealth will recommend to the Court that the defendant be sentenced to serve life on the first degree murder of Delano Peoples, that he be sentenced to serve life on the first degree murder of Phillip Gaskins, that he be sentenced to serve fifteen years on the robbery of Ernest Alston, that he be sentenced to serve three years on the use of a firearm in the commission of a felony, that he be sentenced to serve five years on the use of a firearm in the commission of a felony, that he be sentenced to serve five years on the use of a firearm in the commission of a felony, each sentenced to run consecutively to the other. The Commonwealth further agrees to nolle prosequi the remaining matters associated with the robbery of Ernest Alston (offense date: 4/12/01) and the murders of Delano Peoples and Phillip Gaskins (offense date: 6/21/01) . (ECF No. 10-2, at 1}. The same day, the Circuit Court convicted Thomas of the five counts, and sentenced him to the recommended sentence in the Plea Agreement of two life sentences and a robbery, two additional counts of possession of a firearm by a minor, one count of discharging a firearm in public, and five additional counts of use of a firearm in the commission of a felony. (Br. supp. Mot. Dismiss 2, ECF No. 10.) In exchange for his guilty plea, all of these counts were dismissed. (Id.) 2 twenty-eight year sentence, all to run consecutively. (ECF No. 10-1, at 1.) Thomas filed no appeal and pursued no collateral attacks on his conviction or sentence. the § No. 1.) 2 On November 17, 2016, Thomas filed 2254 Petition now before the Court. In his § 2254 Petition, (§ 2254 Pet. 15, ECF Thomas raises the following claim for relief: Claim One: "Eighth Amendment violation because Petitioner['s] life sentence does not comport with Montgomery v. Louisiana, 136 S. Ct. 718 (2016)." (Id. at6.) II. A. ANALYSIS Statute Of Limitations Respondent contends that the federal statute of limitations bars Thomas's claim. Section Effective Death Penalty Act 101 ( "AEDPA") of the Antiterrorism amended 28 U.S. C. § and 2244 to establish a one-year period of limitation for the filing of a petition for a pursuant to the u.s.c. 1. § writ of habeas corpus by a judgment of a state court. person in custody Specifically, 28 2244(d) now reads: 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- 2 This is the date that Thomas states that his § 2254 Petition was deposited in the prison mailing system, and the Court deems this as the date the § 2254 Petition was filed. See Houston v. Lack, 487 U.S. 266, 276 (1988). 3 {A) {B) (C) (D) 2. 28 u.s.c. B. the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 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; 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. The time during which a properly filed application for State post-conviction 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. § 2244(d). Commencement Of The Statute Of Limitations Under 28 U.S.C. § 2244{d) (1) (A) Thomas's judgment became final on Wednesday, March 6, 2002, when the time to note an appeal expired. one year, or until Thursday, habeas petition. Cir. 2002) See Hill v. {" [T]he one-year March 6, Thomas, therefore, had 2003, Braxton, limitation to file a 277 F. 3d 701, period federal 704 begins (4th running when direct review of the state conviction is completed or when the time for seeking direct review has expired . 4 II (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) . Petition until November pursuant to 28 U.S.C. c. Because Thomas did not file his § 2254 17, 2016, the motion is untimely 2254(d) (1) (A). § Belated Commencement While Thomas does not specifically make the argument, the Court assumes that he intends to argue that his § 2254 Petition is timely under 28 U.S.C. § 2244 (d} (1) (C) because it was filed within one year of the Supreme Court's decision in Montgomery v. Louisiana, 136 S. Ct. 718 that Miller retroactively. v. (2016}, Alabama, in which the Court determined U.S. 567 (2012}, 460 applies (§ 2254 Pet. 14.) In order to obtain a belated commencement of the limitation period under§ 2244(d) (1} (C}, a petitioner "must show: the Supreme Court recognized a 'has made been retroactively collateral review'; and (3) year of right." 2012) . 3 the date on new right; that applicable to the right cases on that he filed his motion within one which United States v. (2) (1) that the Mathur, Supreme Court 685 F. 3d 396, recognized 398 the (4th Cir. If the Supreme Court "decides a case recognizing a new 3 Many decisions that interpret the provision that contemplates a belated commencement based on a newly recognized, retroactive right have done so in the context of the statute for federal prisoners challenging their conviction and sentence, 28 5 right, a federal [or state] prisoner seeking to assert that right will have one year from this Court's decision within which to file his 353 I 358-59 U.S.C. the [2254 petition]." § 2255 (f) (3), § substantive petition]." Cir. 2007) . from the right, Under ( 2005) • "[t]he meaning of right Thus, that the the date the the Mathur, which 685 . is basis for the [2254 § 485 F.3d 1273, 1280 Supreme on (11th "limitation period runs Court the recognizes new F.3d at right 398 the was new "made (alteration in (citing Dodd, 545 U.S. at 357-58}. The Miller Court, retroactively Miller, forms just like under 28 'right asserted'. 2244 (d) (1) (C) § on which retroactive[]." original) 2244(d) (1) (C), Outler v. United States, date not § Dodd v. United States, 545 U.S. the indeed, applicable Supreme to Court recognized a new right that is cases held on collateral review. that "mandatory life In without parole for those under the age of 18 at the time of their crimes violates the Eighth unusual punishments.' Amendment's 11 567 U.S. prohibition at 465. on 'cruel and In Montgomery, the Supreme Court held "that Miller announced a substantive rule of constitutional law" that is retroactively applicable to cases on collateral review. However, timely under 136 S. Ct. at 736. Thomas § U.S.C. § 2255. § 2244 {d) (1) {C}. is incorrect 2244 (d) (1) (C) Section that his because 225S(f) (3) 6 § it was is the 2254 Petition is filed within one federal analog to year of the court's decision in Miller, decision at Thus, § 358-59; for Mathur, Thomas's The 685 F. 3d at 2254 § recognized 2254 Petition relies. § 398 Petition Court's Dodd, 545 (citation omitted) . to be timely under 2244(d) (1) (C), Thomas was required to have filed it within one year of June 25, Miller. 2012, the date that the Supreme Court decided See Dodd, 545 U.S. at 358-59; Malvo v. Mathena, No. PJM 13-1863, 2017 (citations § Montgomery. not its decision in Montgomery, the right upon which Thomas's U.S. in 1326530, omitted) 2244(d) (1) (C), petition WL at (concluding "the timeliness marks from June decided Miller, i.e. when it Amendment violation, declaration of No. 12, file his 2016) § 25, rather (D. Md. [state 2012, (RAO), when inmate's the than from the date 2016 WL 4770027, Thomas, Petition timely filed. § 2244 (d) (1) (C) Thus, 2254] § Supreme of at *l Court Eighth its Young v. later Biter, (C.D. however, 2254 Petition until November 17, 2016. 2017) u.s.c. 28 initially recognized the (concluding same). Thomas cannot rely upon 11, under that of Apr. retroacti vi ty in Montgomery" ) ; CV 16-00520 JLS Sept. *5 Cal. did not Accordingly, to render his § 2254 Thomas has failed to demonstrate any basis for excusing his failure to comply with the statute of limitations. 7 III. Accordingly, Respondent's will be granted. The 2254 § action will be dismissed. final order in a certificate § of 2253 (c) (1) (A) . Motion to Dismiss (ECF No. 9) Petition will be denied and the An appeal may not be 2254 § CONCLUSION proceeding unless appealability a taken from the judge ( "COA") . issues 28 a u.s.c. 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, agree been that) the petition should have for that matter, resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further. ' " 529 U.S. 473, 880, 893 & n.4 484 (2000) (1983)). Slack v. McDaniel, (quoting Barefoot v. Estelle, 463 U.S. No law or evidence suggests that Thomas is entitled to further consideration in this matter. A COA will therefore be denied. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Thomas and counsel of record. It is so ORDERED. /s/ k.) Robert E. Payne Senior United States District Judge Richmond, Virginia Date: October -1.12_, 2017 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?