Johnson v. Pearson

Filing 25

MEMORANDUM OPINION. See Opinion for details. Signed by District Judge John A. Gibney, Jr. on 4/25/2018. (sbea, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

FRED LEE JOHNSON,

Petitioner,
V.

Civil Action No. 3:17CV239

EDDIE L. PEARSON,

Respondent.
MEMORANDUM OPINION

Fred Lee Johnson, a Virginia state prisoner proceeding pro se, brings this petition

pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 3) challenging his conviction in the
Circuit Court for the City of Richmond, Virginia ("Circuit Court") for rape. 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. 15.) Johnson has filed a Response. (ECF
No. 20.) For the reasons set forth below, the Motion to Dismiss (ECF No. 15) will be
GRANTED.

1. PERTINENT PROCEDURAL HISTORY

Johnson pled guilty to rape in the Circuit Court. See Commonwealth v. Johnson^ CR06F-1433-00, at 1 (Va. Cir. Ct. Aug. 16, 2006.) On August 16,2006, the Circuit Court entered the

final judgment with respect to this conviction and sentenced Johnson to an active term of
imprisonment of thirteen years. Id. at 1-2. Johnson did not appeal.
On November 7, 2006, Johnson filed a petition for a writ of habeas corpus with the

Supreme Court of Virginia. See Johnson v. Dir. of the Dep't Corr., No. 062264, at 1 (Va. Oct.

19, 2007). On October 19, 2007, the Supreme Court of Virginia dismissed the petition for a writ
of habeas corpus. Id. at 1-2.
On

March 23,

2017, this

Court received

from

Johnson a document titled,

"INDEPENDENT ACTION TO VACATE GUILTY PLEA THROUGH EXTRINSIC FRAUD

IN VIOLATION OF Va. Code Ann. (8.01^28D)," (ECF No. 1, at 1.)' Johnson subsequently
clarified his wish to file a petition for a writ of habeas corpus and then filed the § 2254 Petition.

(ECF No. 3.) In his § 2254 Petition, Johnson contends that he is entitled to relief because:
Claim One

The victim provided two different statements with respect to the crime.
(§ 2254 Pet. 5.)

Claim Two

Counsel never formulated a plan on how to defend against the charges.
{Id. at 7.)

Claim Three

"Counsel never stated that penetration was an element of rape ...." {Id.
at 8.)

Claim Four

Counsel failed to withdraw after she passed Johnson's case along to
another attorney. {Id. at 10.)

Johnson also list a series of nine other "GROUNDS," which are little more than sentence

fragments. {Id. at 16.) For example, without further elaboration, Johnson states: "5] Failure to

request necessary expert; 6] manifest-injustice; 7] extrinsic fraud ...."

{Id. (punctuation

added).)
II. ANALYSIS
A. Statute of Limitations

Respondent contends that the federal statute of limitations bars Johnson'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

^The Court employs the pagination assigned to Johnson's submissions by the CM/ECF
docketing system. The Court correctsthe spelling in the quotations from Johnson's submissions.

habeas 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

Under 28 U.S.C. § 2244(d)(1)(A), Johnson's judgment became final on Thursday,

September 15, 2006, when the time for filing a notice of appeal 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))); Va. Sup. Ct. R. 5A:3(a) (requiring that a
notice of appeal be filed within thirty (30) days of the entry ofjudgment). The limitation period
began to run on September 16, 2006 and ran for fifty (52) days until Johnson filed his state
habeas petition on November 7, 2006.

See 28 U.S.C. § 2244(d)(2).

The limitation period

remained tolled until October 19, 2007, when the Supreme Court of Virginia dismissed the state

petition for a writ of habeas corpus. Because Johnson waited over a decade after that dismissal
to file his § 2254 Petition, it is clearly barred by the statute of limitations.
C. Equitable Tolling
Furthermore, Johnson has not demonstrated a viable basis for a belated commencement

of the limitation period or some equitable exception that would allow him to avoid the statute of
limitations. Rather, Johnson suggests that the Court should excuse his late filing because he "did
not know ,.. how to file" and did not have legal assistance. (§ 2254 Pet. 13-14.) The Supreme

Court has "made clear that a 'petitioner' is 'entitled to equitable tolling' only if he shows

'(1) that 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)). Ignorance of the law and lack of legal
assistance upon the conclusion of direct appeal are not extraordinary circumstances that warrant

the tolling of the limitation period. See United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)
(citing Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th 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.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)).

Because Johnson 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. 15) will be
GRANTED. Johnson's claims will be DISMISSED, and his § 2254 Petition will be DENIED.

The action will be DISMISSED. Johnson's Motion for an Evidentiary Hearing (ECF No. 21)
will be DENIED. A certificate of appealability will be DENIED.

An appropriate Final Order shall issue.

/s/

John A. Gibncy, Jr.
Date:

Richmond, Virginia

United States Distriglt Jud;