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, )

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