Harrison v. Clarke
Filing
24
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 08/23/2018. (smej, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
WILLIAM DAVID HARRISON,
Petitioner,
V.
Civil Action No. 3:17CV738
HAROLD W. CLARKE, DIRECTOR OF THE
VIRGINIA DEPT. OF CORRECTIONS,
Respondent.
MEMORANDUM OPINION
William David Harrison, a Virginia inmate proceeding by
counsel, brings this AMENDED PETITION UNDER 28 U.S.C. § 2254 FOR
WRIT
OF
HABEAS
CORPUS
("§ 2254
Petition,"
ECF
No.
15).
Respondent moves to dismiss, inter alia, on the ground that the
one-year
statute
of
limitations
petitions bars the § 2254 Petition.
governing
federal
habeas
Harrison has filed a RULE 5
REPLY TO RESPONDENT'S MOTION TO DISMISS ("Reply," ECF No. 22.)
For
the
reasons
set
forth
below,
the
Motion
to
Dismiss
(ECF
No. 18) will be granted.
I.
A.
PROCEDURAL HISTORY
State Proceedings
On November 3, 2008, Harrison was convicted in the Circuit
Court of Isle of Wight County ("Circuit Court") of object sexual
penetration,
rape,
and
abduction
with
(ECF No. 20-1, at 1; ECF No. 20-2, at 1.)
the
intent
to
defile.
On March 4, 2009, the
Circuit
Court
sentenced
Harrison
to
a
total
incarceration of life plus forty-five years.
2.)
Harrison appealed.
The
active
teirm
(ECF No. 20-1, at
Court of Appeals of
Virginia
summarized the evidence of Harrison's guilt as follows:
On
the
night
of
June
15,
2007,
the
victim,
a
nine-year-old girl, was visiting the home of a family
friend with her seven-year-old sister and three of her
brothers.
and
Also present were Michael Baker ("Baker")
Harrison,
whom
the
victim
knew
as
"Monte."
At
approximately 11:30 p.m.. Baker,
who the
victim
referred to as her stepfather, told the victim and her
sister that it was time for them to go home. The two
girls then left to walk home.
In order to walk home, the girls had to take a
path through a partially wooded area. As the girls
walked along the path, the victim turned around and
noticed Harrison following approximately seven to
eight feet behind them.
When the victim looked back
again shortly thereafter, she saw that Harrison was no
longer behind them.
Moments later, Harrison "jumped
out of the woods" and told the victim's sister to "go
home before he bust [sic] her upside her head."
The
victim's sister ran home.
Once alone with the victim, Harrison pushed her
down, grabbed her wrists, and dragged her to an area
behind
a
shed.
When
punched her in
screamed again,
Harrison
took
the
victim
screamed,
Harrison
the eye, telling her that if she
he would take her into the woods.
off
the
victim's
shirt
and
shorts
then instructed her to remove her underwear.
and
Harrison
pulled down his pants and told the victim to lie down.
Harrison then "got on top of" the victim and inserted
his penis into her vagina.
Harrison
then
moved
the
victim
to
another
location, behind a neighbor's house, where he forced
the victim to place her shirt inside her mouth while
he inserted his fingers into her vagina.
He also put
his penis inside her mouth.
At some point, the victim was able to escape from
Harrison and
ran naked
of
with her shorts in her hand to
her neighborhood, where she encountered several of her
cousins and older brothers.
The victim tearfully
reported to them that "Monte rape[d]" her.
Several
witnesses saw the victim running naked that night, and
several more witnesses heard the victim crying and
saying that Harrison raped her.
The victim was taken to the hospital, where
Sherlene Pregent
(''Pregent") /
a sexual assault nurse
examiner, examined her.
Pregent noticed that the
victim had a swollen eye, scratches on her left inner
thigh, and leaves and debris in her hair.
Around the
victim's external genital area, Pregent observed "a
lot of swelling," blood clots, bruising, and several
tears,
including
one
she
characterized
as
a
"significant
tear"
that
the
medical
team
had
considered suturing.
In Pregent's opinion,
the
victim's injuries resulted from "very aggressive,
forceful" penetration.
The next day. Deputy Sheriff James Pope of the
Isle of Wight Sheriff's Office took the victim back to
her neighborhood to retrace the path through the woods
and the field where the attack occurred.
As a result.
Deputy Pope was able to recover the victim's shoes and
underwear, a screwdriver, and a ball cap.
The victim
identified the ball cap as the one worn by Harrison
when
he
attacked
her.
Forensic
examination
of
the
ball cap revealed blood stains from the victim on the
inside of it.
with
Harrison was subsequently arrested and charged
object sexual penetration, rape, and abduction
with intent to defile.
In addition to the testimony of the victim and
Pregent, the jury also heard testimony from the
victim's
sister.
The
victim's
sister
testified
that
Harrison followed them out of the friend's house, told
her to go home, and threatened to "bust [her] in the
back of [her] head" if she did not leave.
Additionally, the jury heard testimony from Earl
Goodman ("Goodman"), an inmate housed with Harrison in
jail after his arrest. According to Goodman, Harrison
said that he was "drinking" and "high" when he
accosted a "little girl that he knew" while they were
"outside."
In describing the crime to Goodman,
Harrison said that one little girl ran away and he
dragged the other and tried to "get his way with her."
Harrison told Goodman that he removed the girl's
clothes and "started messing with her."
Goodman
testified that Harrison had said he "couldn't do
what
he wanted to do because the little girl was fighting
back."
Harrison then presented witnesses on his behalf,
including his daughter, his mother, and his estranged
wife, in an attempt to establish that Harrison was
elsewhere
at
the
time
of
the
attack.
Harrison
was
subsequently found guilty on all counts and sentenced
to life in prison plus eighty-five years.
(ECF No. 20-2, at 1-5 (alterations in original).)
On June 22, 2010, the Court of Appeals of Virginia affirmed
Harrison's convictions.
of
(Id. at 9.)
Supreme
Court
Virginia
refused
appeal.
On November 15, 2010, the
Harrison's
petition
for
(ECF No. 20-3, at 1.)
On November 14, 2011, Harrison filed filed a petition for a
writ of habeas corpus in the Circuit Court.
at 2.)
(See ECF No. 20-4,
On July 9, 2012, the Circuit Court denied the petition,
(Id. at 16.)
Harrison filed no appeal of that decision.
On June 19, 2017, Harrison filed an original petition for a
writ of habeas corpus in the Supreme Court of Virginia.
ECF No. 20-5, at 1.)
(See
The Supreme Court of Virginia dismissed
the petition, finding that it "was not filed within one year
from the November 15, 2010, final disposition of petitioner's
direct appeal.
B.
On
Code § 8.01-654(A)(2)."
(Id.)
Federal Habeas Petition
October
19,
2017,
Harrison
executed
and
placed
his
original pro se § 2254 petition in the prison mail system for
transmission to this Court.^
(EOF No. 1, at 15)^
The Court
finds that the § 2254 Petition filed as of October 19, 2017, not
September
19,
(1988).
2017.
See
Houston
v.
Lack,
487
U.S.
266,
276
Harrison later retained counsel, and filed the § 2254
Petition that is before the Court.
contends
that
he
is
entitled
to
(ECF No. 15.)^
habeas
relief
Harrison
based
on
the
following:
A. Trial counsel, Randolph D. Stowe, failed to
investigate and question the victim ("W.B."), a nineyear-old girl, on whether she ever told her five-yearold friend [(S.H.)], to say that Mr. Harrison touched
her
[(S.H.'s)]
butt.
To
the
extent
that
W.B.
would
^ The Court employs the pagination assigned by the CM/ECF
docketing system for citations to the § 2254 Petition and the
Reply.
^ Harrison indicates that he placed his original pro se
§ 2254 petition in the prison mail system on ''(10-19-17)
September 19-17."
(ECF No. 1, at 15.)
The postmark on the
envelope in which Harrison's pro se § 2254 petition was mailed
notes a date of October 25, 2017.
(ECF No. 1-2, at 1.)
The
Court received the pro se § 2254 petition on November 1, 2017.
(ECF No. 1, at 2.)
The sum of this information shows that
Harrison placed this petition in the prison mail system on
October 19, 2017, not September 19, 2017. Nevertheless, even if
the Court were to assume that the § 2254 Petition was filed on
September 19, 2017, it would still be untimely.
^ Counsel originally filed a Motion to Amend (ECF No. 8) and
an
Amended
§
2254
Petition
with
the
minor
victim's
name
and
other minor witnesses' names un-redacted.
By Memorandum Order
on December 12, 2017, the Court denied the Motion to
entered
Amend
and
version
Court
instructed
of
notes
the
counsel
Amended
that
§
counsel
that
2254
failed
he
could
Petition.
to
redact
re-file
(ECF
all
No.
of
a
redacted
12.)
the
names
The
of
the minor witnesses.
The Court replaces those witnesses' names
with their initials in this opinion.
have denied saying that, S.H's mother and S.H. herself
could have been called as a rebuttal witnesses.
B. Trial counsel . . . failed to investigate and
question the victim and her younger sister on whether
they ever falsely accused Mr. Harrison of pushing them
down
about
two
months
before
the
sexual
assault.
To
the extent that they would have denied saying that,
Yvonne
Hurdle
could
have
been
called
as
a
rebuttal
witness.
C. Trial counsel . . . failed to investigate the
knowledge
of
Margaret
Young
about
her
sister's
credibility and failed to call Margaret Young to
testify that the victim, her younger sister, and Mr.
Harrison were not at her home the night of June 15,
2007 when the victim was sexually assaulted.
(§ 2254 Pet. 13.)
II.
A.
ANALYSIS
Statute Of Limitations
Respondent contends that the federal statute of limitations
bars
Harrison'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:
1.
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
(B)
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;
(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)
2.
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.
28 U.S.C. § 2244(d).
B.
Commencement And R\inning Of The Statute Of Limitations
Harrison's judgment became final on Monday, February 14,
2011, when the time to file a petition for a writ of certiorari
to the Supreme Court of the United States expired.
Braxton,
277
F.3d
701,
704
{4th
Cir.
2002)
See Hill v.
(« [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)));
Sup. Ct. R. 13(1) (requiring that a petition for certiorari be
filed within ninety days of entry of judgment by state court of
last resort or of the order denying discretionary review).
The statute of limitations began to run the following day,
February 15, 2011.
Two hundred and seventy-two days of the
limitation period had expired before Harrison filed his petition
for a writ of habeas corpus in the Circuit Court on November 14,
2011.
28 U.S.C. § 2244(d)(2); (ECF No. 20-4, at 2).
The
statute of limitations began to run again on July 10, 2012, the
day after the Circuit Court dismissed Harrison's petition for a
writ
of
habeas
coirpus.
The
federal
statute
of
limitation
expired ninety-three days later, on Thursday, October 11, 2012.
Harrison
2017,
did not file
more
than
his § 2254 Petition until October 19,
five
limitations period.
years
after
the
expiration
of
the
Therefore, the statute of limitation bars
Harrison's § 2254 Petition.^
C.
Belated Coinmencement Under 28 U.S.C. § 2244(d)(1)(D)
Harrison argues that he "does not claim timeliness under 28
U.S.C.
Rather,
§
2244(d)(1)(A)
[Harrison]
nor
claims
does
he
claim
timeliness
statutory
under
28
tolling.
U.S.C.
§ 2244(d)(1)(D) based on the factual predicate of his claims not
^ Respondent notes that Harrison filed a second state habeas
corpus petition in the Supreme Court of Virginia on June 19,
2017.
However, that petition was also filed well beyond the
expiration of the federal limitation period and is not entitled
to statutoiry tolling.
Indeed, Harrison concedes that he is not
arguing that this second state habeas petition is entitled to
statutory tolling.
previously being discoverable by due diligence."
(Reply 2, ECF
No. 22).
Whether a petitioner has exercised due diligence to warrant
a belated commencement of the limitation period pursuant to 28
U.S.C. § 2244(d)(1)(D) is a fact-specific inquiry unique to each
case.
See Wims v. United States, 225 F.3d 186, 190-91 (2d Cir.
2000).
A petitioner bears the burden to prove the exercise of
due diligence.
2006).
DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir.
Due diligence "at least require[s] that a prisoner make
reasonable efforts to discover the facts supporting his claims."
Anjulo-Lopez v. United States, 541 F.3d 814, 818 (8th Cir. 2008)
(quoting Aron v. United States, 291 F.3d 708, 712 (11th Cir.
2002)).
A habeas applicant who "merely alleges that [he or she]
did not actually know the facts underlying his or her claim does
not"
thereby demonstrate
due
diligence.
F.3d 1538, 1540 (11th Cir. 1997).
In re Boshears, 110
Under § 2244(d)(1)(D), the
limitation period begins to run when the petitioner knows, or
through
due
predicate
for
diligence
a
potential
legal significance.
(3d
Cir.
2000).
Court
2004);
could
have
claim,
discovered,
not
when
he
the
factual
recognizes
its
See Schlueter v. Varner, 384 F.3d 69, 74
Owens
v.
Boyd,
235
F.3d
356,
359
(7th
Cir.
Furthermore, in evaluating a petitioner's diligence, the
is
mindful
that
the
"statute's
clear
policy
calls
for
promptness."
Johnson
v.
United
States,
544
U.S.
295,
311
(2005).
Harrison argues that:^
The factual predicates of [his] claims are the
previously
unavailable
evidence
(i.e.,
witness
affidavits) appended to the habeas corpus petition in
support.
his
trial
Mr. Harrison's claims concern the failure of
counsel
to
investigate
and
question
the
victim regarding whether she ever told her friend to
say Harrison touched her buttocks [Claim A] and
whether she and her sister ever falsely accused
Harrison of pushing them down two months prior [Claim
B]; and trial counsel's failure to investigate and
call Margaret Young to impeach the victim's testimony
that the victim, her sister, and Harrison were at Ms.
Young's home the night of the attack [Claim C].
Without the previously unavailable affidavits,
Mr. Harrison was unable to establish the factual basis
for his claims during the running of the original
limitations period under § 2244. . . .
The
affidavits
were
previously
unavailable
through Mr. Harrison's due diligence.
Mr. Harrison
learned of what these witnesses might say from the
report generated by trial counsel's investigator prior
to trial.
However, over Mr. Harrison's objections,
trial
counsel
refused
to
follow
up
on
the
investigative results and use the information at trial
as alleged in the present claims. . . .
^ Harrison's § 2254 Petition, although notarized, is not
truly sworn to under penalty of perjury, because he only states
that "[t]he facts stated therein are true to the best of my
information and belief and I intend them to have the same force
and effect as an affidavit."
(ECF No. 15-1, at 2.)
Facts that
are made upon belief or information are not sufficiently based
on personal knowledge and fail to transform
the statements in
his § 2254 Petition into an affidavit.
See Rules Governing
§ 2254 Cases in U.S. District Courts, Rule 2(c)(5) (requiring
that petitions brought pursuant to 28 U.S.C. § 2254 "be signed
under penalty of perjury by the petitioner or by a person
authorized to sign it for the petitioner under 28 U.S.C.
§ 2242").
10
However,
Mr. Harrison
sitting in prison since
the day of his arrest and proceeding pro-se during the
entirety of the state habeas proceeding
did not have
the means or opportunity to track down these witnesses
himself and demand statements and/or affidavits to
support his claims.
Therefore, Mr. Harrison resorted
to the only reasonable thing he could do under the
circumstances:
conduct his own research to the best
of his ability, attempt to contact the affiants on his
own, and impress upon his family members the need to
obtain sworn affidavits from the witnesses who spoke
with trial counsel's investigator consistent with what
they told him.
(§ 2254 Pet. 9-10.)
''only
recently
Harrison
then
Harrison then vaguely suggests that he
received"
clarifies
these
that
his
affidavits.
efforts
to
(Id.
obtain
at
10.)
affidavits
"started to yield results, beginning on December 30, 2016, the
first witness, Yvonne Hurdle, agreed to come forward and supply
Mr.
Harrison
with
an
affidavit.
That
was
followed
by
the
affidavits of Virginia Hall and her daughter [S.H.] on January
9, 2017; Margaret Young's on January 11, 2017. . . ."
(Id. at
11.)®
® Harrison also submitted the affidavit of Carole Lyttle
with his § 2254 Petition, however, neither Carole Lyttle nor her
testimony is a basis for any of the three specific claims of
ineffective
assistance
of
counsel
raised
here.
(§
2254
Pet.
13.) Clearly, counsel would not have known about this testimony
at the time of Harrison's trial.
As Respondent correctly
argues, this affidavit could only support a claim of actual
innocence, an argument that Harrison specifically states he does
not advance in his § 2254 Petition. (See Br. Supp. Mot. Dismiss
19 n.7, ECF No. 20; Reply 4-5, ECF No. 22.)
Moreover, as a preliminary matter, although the three
affidavits submitted with his § 2254 Petition are notarized,
none of them are truly sworn to under penalty of perjury.
Rather, each affidavit repeats, "I swear under penalty of
11
Harrison, in essence, argues that the factual predicates
underlying his ineffective assistance claims could not have been
discovered
by
affidavits.
due
As
diligence
discussed
until
below,
that
Harrison
is
not
obtained
the
correct,
and,
contrary to Harrison's contentions, he lacks entitlement to the
benefit of a belated commencement of the limitations period.
1.
Claims A and B
As a preliminary matter, it is appropriate to note that
Harrison's position on timeliness is logically inconsistent with
his underlying claims that fault counsel for failing to call
witnesses during trial.
The factual predicate of a claim is the
underlying ''vital facts."
Ford v. Gonzalez, 683 F.3d 1230, 1235
(9th Cir. 2012) (citation omitted) ("The 'due diligence' clock
starts ticking when a person knows or through diligence could
discover
the
vital
facts,
regardless
of
when
their
legal
perjury that the foregoing is true and correct to the best of my
knowledge and belief."
(See EOF Nos. 15-1, at 5, 6, 7, 8.)
Later, each affidavit states, "The facts stated in the Affidavit
are true to the best of his/her information and belief."
(See
ECF No. 15-1, at 5, 6, 7, 8.) The Court is doubtful that such a
statement
transforms
the
contents
of
these
affidavits
into
admissible evidence because statements made on "information and
belief" fail to show that the affiant is competent to testify on
the matters stated therein.
See Hogge v. Stephens, No.
3;09CV582, 2011 WL 2161100, at *2-3 n.5 (E.D. Va. June 1, 2011)
(treating statements sworn to under penalty of perjury, but made
upon information and belief, as "mere pleading allegations"
(quoting Walker v. Tyler Cty. Comm'n, 11 F. App'x 270, 274 (4th
Cir.
2001))).
However,
the
Court
need
not
decide
the
admissibility of these affidavits because the underlying claims
that they support are untimely.
12
significance is actually discovered.")
The vital facts here in
Claims A and B are that counsel failed to call as witnesses at
trial, Virginia Hall and her daughter, and Yvonne Hurdle, who
would have testified about previously lying by the victim.
Both
Harrison and counsel were aware of exactly what Virginia Hall
and
her
daughter
and
before the trial.
Yvonne
Hurdle
would
have
testified
to
Harrison admits that he learned the factual
content of their testimony before his trial when defense counsel
shared the report of the defense investigator with Harrison.
(§
2254 Pet. 9.)
Claim A concerns the statements of Virginia Hall and her
daughter, S.H.
Both Virginia Hall and S.H. indicated that the
victim instructed S.H. to falsely accuse Harrison of touching
her.
On July 1, 2008, Virginia Hall called the investigator and
told him that the victim
had told her daughter to lie about
Harrison improperly touching
touched
her.
submitted
by
information
2008.
{ECF
S.H.
No. 15-1,
and
provided
(Id. at 5-6.)
her, and that Harrison had
to
at
Virginia
the
13-14.)
Hall
defense
The
consist
of
investigator
never
affidavits
the
on
exact
July
1,
Thus, Harrison knew what Virginia Hall and
her daughter would have testified to before Harrison's trial in
November of 2008.
The fact that counsel did not call these two
witnesses was readily known to Harrison by the conclusion of his
trial.
Moreover,
Harrison
clearly
13
had
a
copy
of
the
investigator's report in 2011 because he filed the report with
his state habeas petition in the Circuit Court on November 14,
2011.
Harrison's
suffers
from
timeliness
similar
argument
with
deficiencies.
respect
Claim
B
to
Claim
concerns
B
the
statement of Yvonne Hurdle, indicating that the victim and her
sister once falsely claimed that Harrison had pushed them to the
ground.
On
June
investigator and
"she
went
to
30,
told
the
2008,
him
police
Yvonne
that,
after
station
approximately 2 months beforehand,"
had
made
up
a
story
that
Hurdle
Harrison
and
victim
pushed
to
the
arrested,
them
that
and her sister
them
Harrison told them to go home because it was late.
1, at 12-13.)
with
was
relayed
the
Harrison
spoke
down
after
(ECF No. 15-
Hurdle also told the investigator that one of the
girls threw a rock at Harrison's face and she saw the mark left
by the impact.
Hurdle's affidavit contains the same facts as
were in the investigator's report.
counsel
testified
and
to
Harrison
before
knew
what
Harrison's
(Id. at 8.)
Yvonne
trial
in
Hurdle
2008.
Again, both
would
Harrison
have
was
aware that co\msel had not called Hurdle as witness by the end
of his trial.
Thus, Harrison was aware of the factual predicate
underlying this claim as early as 2008, and at the very latest,
by 2011 when he filed the investigative report with his state
habeas petition and raised a claim faulting counsel for failing
14
to call Yvonne Hurdle.
For both Claim A and B, the limitation period began to run
when Harrison knew of the factual predicate for each claim, not
when he recognized its legal significance.
at 74; Owens, 235 F.3d at 359.
he
was
unaware
of
the
Schlueter, 384 F.3d
In the absence of a showing that
factual
predicate
for
each
of
these
claims, Harrison's general and vague argument that he needed the
affidavits
claim,
in
hand
does
not
limitations.
to
actually know
provide
any
the
refuge
facts
from
underlying
the
statute
his
of
See Flanagan v. Johnson, 154 F.3d 196, 199 (5th
Cir. 1998) ("Section 2244(d)(1)(D) does not convey a statutory
right to
an extended
delay . . . while a
habeas
petitioner
gathers every possible scrap of evidence that might, by negative
implication,
limitations
facts
support
his
began running
giving
rise
to
(7th
Cir.
2007)
when
his
evidence to support it."
422
claim.")
Rather,
the
Harrison "became
claim,
not
when
he
statute
of
aware of
the
obtained
the
Deloney v. McCann, 229 F. App'x 419,
(citations
omitted).
Harrison
knew
what
these witnesses would testify to before trial, and he knew that
his counsel had not called these witnesses immediately after the
trial
concluded.
Because
Harrison
was
aware
of
the
factual
predicates of his claims in 2008, or at the very latest in 2011,
Harrison cannot rely on § 2244(d)(1)(D) to render Claims A or B
timely filed.
15
Even though Harrison clearly actually knew of the factual
predicates of his claims much earlier, Harrison makes much of
the fact that he submitted the investigator's report to the
Circuit Court
Circuit
with his state
Court
found
this
habeas
report
petition,
to
be
but that the
inadmissible
and
speculative, thus Harrison had no ''evidentiary facts upon which
to
base
his
claims."
{§ 2254
Pet.
11.)
This
means
that
Harrison was aware that he needed to obtain evidence in the form
of affidavits or sworn statements to support his claims as early
as
the
July
9,
2012
denial
of
his
state
habeas
petition.
Harrison failed to obtain any affidavits until December 2016 and
January 2017.
Harrison claims, vaguely, that he tried to get
family members to obtain affidavits from these witnesses because
he was incarcerated.
However, Harrison fails to identify any
specific efforts he made between July 2012 and December 2016
when
he
received
the
first
affidavit.
The
record
shows
that
Harrison simply fails to show that he was reasonably diligent in
obtaining these affidavits.'
'Although Harrison does not argue that he is entitled to
equitable tolling, the foregoing analysis also establishes that
for the same reason, he would not satisfy that standard.
Harrison fails
to establish
that
he
pursued
his
rights
diligently or that an extraordinary circumstance stood in his
way and prevented him from timely filing.
Holland v. Florida,
560 U.S. 631, 649 (2010).
16
Harrison then argues that, "[t]o the extent that Respondent
challenges the veracity of Petitioner's explanation [for why it
took him so long to obtain the affidavits], an evidentiary
hearing is required for the taking of evidence and detemiining
of facts."
burden
(Reply 3.)
under
Harrison appears to misunderstand his
§ 2244(d)(1)(D).
Harrison
bears
the
demonstrating that he exercised due diligence.
F.3d at 471.
burden
of
DiCenzi, 452
He has not done so here.
Accordingly, for Claims A and B, Harrison lacks entitlement
to
a
belated
commencement
§ 2244(d)(1)(D).
of
the
limitations
period
under
Claims A and B are untimely and are barred by
the statute of limitations
2.
Claim
C
Claim C
asserts
that
trial
counsel
was
deficient
for
failing to investigate Margaret Young's knowledge of her younger
sister's credibility and for failing to call as a trial witness,
Margaret Young, who would have testified that the victim, her
younger sister, and Harrison were not at her home the night of
the sexual assault, rape, and abduction.
(§ 2254 Pet. 7, 9.)
Once again, Harrison argues that he only obtained the affidavit
from Margaret Young in January 2017, and the ''affidavits were
previously
unavailable
(Id. at 9, 11.)
through
Mr.
Harrison's
due
diligence."
In her affidavit, Margaret Young states in sum,
"[o]n June 15, 2007, the night that W.B. was sexually assaulted.
17
W.B. and her sister C.B. were not at my house playing with my
grandchildren.
Also,
^Monty' William Harrison was not in my
house on that night either."
(ECF No. 15-1, at 7 (paragraph
numbers omitted).)
To obtain a belated commencement of the limitation period,
Harrison "must explain why a reasonable investigation would not
have
unearthed
the
facts
prior
to
the
limitation period commenced under 28
date
under
which
the
U.S.C. § 2244(d)(1)(A)."
Magano v. Mims, No. 3:10CV525, 2011 WL 4073260, at *8 (E.D. Va.
Sept. 13, 2011) (quoting In re Boshears, 110 F.3d at 1540-41).
Harrison's trial occurred in November 2008, and his conviction
became final in February 2011.
Harrison must demonstrate that a
reasonable investigation would not have unearthed the testimony
of Margaret Young until after February 2011.
do.
This he fails to
Harrison faults counsel for not calling Margaret Young as a
witness to testify that he, the victim, and her sister were not
at Young's home on June 15, 2007.
However,
have
known
both
about
Specifically,
coiinsel
and
Margaret
Harrison
knew
Harrison
Young's
before
either
knew
testimony
trial,
or
or
before
at
should
trial.
the
latest,
during trial, that the Commonwealth's evidence was that he and
the
victim
were
at
Margaret
Young's
home
and
that
he
Young's home and followed the victim and her sister home.
clearly Margaret
Young
was a
person
18
with knowledge.
left
Thus,
Whether
Harrison or the victim and her sister were present at Margaret
Young's
house on the
important
issue
night of
during
June
trial.
15, 2007 clearly was an
Multiple
witnesses
testified
about Harrison and the two girls' whereabouts the night of the
crimes.
Margaret
The victim and her sister testified that they were at
Young's
home
that
Harrison followed them home.
2008 Tr. 146-47.)
but
that
with
Harrison,
and
that
(Nov. 3, 2008 Tr. 109-10; Nov. 3,
Harrison's daughter also testified that she
and Harrison sat on the
evening,
night
the
porch at Margaret Young's home that
victim
and
(Nov. 3, 2008 Tr. 230-32, 236-37.)
her
sister
were
not
there.
Michael Baker testified that
he and Harrison were at Margaret Young's house with the victim
and her sister as it was getting dark.®
Margaret Young was the
only
testify
adult
at
the
home
who
did
not
during
trial.
Moreover, not only was the presence of Harrison and the victim
at her home in question, but Margaret Young was the grandmother
of Harrison's children.
2008 Tr. 231.)
would
have
(See Nov. 3, 2008 Tr. 197-98; Nov. 4,
Any reasonable person exercising due diligence
discovered
her
testimony
by
the
time
Harrison's
® Although Harrison did not testify in his defense, in his
§ 2254 Petition he states that he "was never inside Margaret
Young's house . . . he went there at approximately 10:50 and
knocked on the door" and talked briefly with his daughter
outside. (§ 2254 Pet. 18 (emphasis added).)
19
conviction became final in February 2011, and certainly years
before January 2017.
Moreover,
the
new
testimony from
Margaret
Young
merely
corroborates Harrison's position that the victim was not present
at
Young's
"Section
home,
and
that
2244(d)(1)(D)
Harrison
does
was
not
not
restart
"in"
her
the
time
corroborating evidence becomes available . . . .
home.^
when
As a matter of
law new, evidence supporting a claim actually made at or before
trial
cannot
form
§ 2244(d)(1)(D)."
(7th
Cir.
the
basis
Escamilla v.
2005), abrogated
on
of
a
new
period
Jungwirth, 426
other
Perkins, 569 U.S. 383, 397 (2013).
grounds
under
F.3d 868, 871
by
McQuiggin
v.
Of course, Harrison argues
for the converse of that settled principle.
Harrison again contends that he could not have discovered
the factual predicate of his claim through the exercise of due
diligence
until
he
received
Margaret
Young's
affidavit
in
January 2017, more than eight years after he heard the evidence
that placed both himself and the victims at Margaret Young's
house.
That argument is unpersuasive.
"A habeas applicant who
'merely alleges that [he or she] did not actually know the facts
underlying his or her claim does not' thereby demonstrate due
^ Harrison's mother, Dora Harrison, and his wife, Janelle
Harrison,
women
also
testified
testified
that
about
Harrison
Harrison's
was
at
his
whereabouts.
mother's
home
Both
around
the time the sexual assault, rape, and abduction took place.
(Nov. 4, 2008 Tr. 241-42, 248.)
20
diligence."
Magano,
2011
WL
4073260,
at
*8
(alteration
original) (quoting In re Boshears, 110 F.3d at 1540).
in
Contrary
to Harrison's contentions here, the statute of limitations began
running when he "became aware of the facts giving rise to his
claim,
not
when
he
obtained
the
Deloney, 229 F. App'x at 422.
evidence
to
support
it."
Simply put, Harrison should have
known the factual basis for this claim, through the exercise of
due diligence, many years before he received the affidavit in
2017.
Harrison
attempting
states
unpersuasively
to
that
obtain
"he
argues
Margaret
impressed
that
Young's
upon
his
he
was
diligent
affidavit.
family
the
in
Harrison
importance
of
reaching out to these witnesses and obtaining their affidavits"
and that "[t]here was nothing else [Harrison] could have done to
compel the witnesses to provide him with affidavits within the
limitations period for his claims.
not
point
to
(Reply 4.)
anything
It is
demonstrate
his
further
Petitioner
incumbent on Harrison,
exercise
of
due
factual predicates of his claim.
about
the
Tellingly, Respondent does
limitations of
his
could
have
done."
not Respondent,
diligence
to
discover
to
the
Harrison's vague statements
incarceration fail
to
account for
the more than eight-year delay between his trial and obtaining
Margaret Young's affidavit in January 2017.
viable
evidence
about
why
he
could
21
not
Harrison offers no
have
learned
about
Margaret Young's testimony and counsel's failure to call her as
a witness at trial, if he had exercised due diligence, before
the time that his conviction became final in February 2011.
Accordingly,
commencement
of
Harrison
the
lacks
entitlement
limitations
§ 2244(d)(1)(D) for Claim C.
to
belated
under
period
a
U.S.C.
Claim C is untimely and is barred
by the statute of limitations.
III. CONCLUSION
Accordingly, Respondent's Motion to Dismiss (ECF No. 18)
will be granted.
The § 2254 Petition will be denied and the
action will be dismissed.
An appeal may not be taken from the final order in a § 2254
proceeding unless a judge issues a certificate of appealability
("CCA").
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
requirement
debate
is
right."
satisfied
28
only
U.S.C.
§ 2253(c)(2).
when ''reasonable
jurists
This
could
whether (or, for that matter, agree that) the petition
Harrison fails to suggest any other basis for a belated
commencement
of
the
limitation
period
under
28
U.S.C.
§ 2244(d)(1)(B)-(C), or for equitable tolling for his three
claims.
Harrison
also
does
not
raise
actual
innocence
as
an
exception. Harrison states: "Respondent argues that Petitioner
has failed to produce any new reliable evidence establishing his
actual innocence to excuse his federal procedural default.
Petitioner does not dispute this argument as he did not raise a
Schlup actual innocence claim." (Reply 4-5.)
22
should
have
been
issues
resolved
presented
were
proceed further.'"
in
a
'adequate
different
to
manner
deserve
or
that
the
encouragement
to
Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
No law or evidence suggests that Harrison 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 counsel of record.
/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date:
August
, 2018
23
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