Turner v. Commonwealth of Virginia et al

Filing 17

MEMORANDUM OPINION. Signed by District Judge Roderick C. Young on 11/13/2023. (adun, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MATTHEW ALLEN TURNER,
Petitioner,
v.

Civil Action No. 3:22CV785 (RCY)

HAROLD W. CLARKE,
Respondent.
MEMORANDUM OPINION
Matthew Allen Turner, 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 Virginia Beach, Virginia (“Circuit Court”). Respondent moves to
dismiss, inter alia, on the ground that the one-year statute of limitations governing federal habeas
petitions bars the § 2254 Petition. Despite the provision of notice pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), Turner did not respond. For the reasons that follow, the
§ 2254 Petition will be DENIED as barred by the statute of limitations.1
I. Procedural History
Turner pled guilty to two counts of robbery, two counts of robbery of a business, two counts
of conspiracy to rob a business, one count of robbery of a residence, one count of attempted
robbery, four counts of use of a firearm in the commission of a felony, and one count of wearing
a mask in public. (ECF No. 14, at 1.) By Order entered on January 23, 2012, the Circuit Court
sentenced Turner to an active sentence of 23 years of imprisonment. (ECF No. 14-2, at 2.) Turner
did not appeal.

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The Court employs the pagination assigned by the CM/ECF docketing system.

On December 14, 2023, this Court received Turner’s “Motion To Show Good Cause For
Reconsideration For Sentence Reduction Under New Law.” (ECF No. 1, at 1.) Given the content
of that document, the Court gave Turner the opportunity file a 28 U.S.C. § 2254 petition. (ECF
No. 2.) On January 23, 2023, Turner filed his § 2254 Petition. (ECF No. 3.) In his § 2254 Petition,
Turner contends that he is entitled to relief upon the following grounds:
Claim One

Counsel failed to file an appeal as requested. (Id. at 5.)

Claim Two

Petitioner is entitled to a sentence reduction based on his good behavior in
prison. (Id. at 7.)

In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that
he is “in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). Claim Two fails to present any cognizable basis for relief under 28 U.S.C.
§ 2254. Accordingly, Claim Two will be DISMISSED. As explained below, Claim One will be
DISMISSED because it is barred by the relevant statute of limitations.
II. Statute of Limitations
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 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;

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(C)

2.

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 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).
A. Commencement and Running of the Statute of Limitations
Under 28 U.S.C. § 2244(d)(1)(A), Turner’s conviction became final on Wednesday,
February 22, 2012, when the time for filing a notice appeal expired. See Hill v. Braxton, 277 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:6(a) (requiring notice of appeal to be filed
within thirty (30) days). The one-year limitation period for filing his § 2254 Petition then expired
on February 22, 2013. Because Turner failed to file his § 2254 Petition until many years after that
date, it is barred by the relevant statute of limitations, unless Turner demonstrates an entitlement
to a belated commencement of limitation period under 28 U.S.C. § 2244(d)(1)(B)–(D) or an
equitable exception renders his § 2254 Petition timely. As explained below, Turner fails to
demonstrate any circumstance that would render his § 2254 Petition timely.
Turner may be entitled to a belated commencement of the limitation period under 28 U.S.C.
§ 2244(d)(1)(D). This provision provides for a belated commencement of the limitation period
until “the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Whether due

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diligence has been exercised is a fact-specific inquiry unique to each case. Wims v. United States,
225 F.3d 186, 190–91 (2d Cir. 2000). A petitioner bears the burden to prove that he or she
exercised due diligence. DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006). “Due diligence . . .
does not require a prisoner to undertake repeated exercises in futility or to exhaust every
imaginable option.” Anjulo-Lopez v. United States, 541 F.3d 814, 818 (8th Cir. 2008) (citation
omitted). Due diligence, however, “at least require[s] that a prisoner make reasonable efforts to
discover the facts supporting his claims.” Id. (citation omitted). Moreover, in evaluating a
petitioner’s diligence, the Court must be mindful that the “statute’s clear policy calls for
promptness.” Johnson v. United States, 544 U.S. 295, 311 (2005).
Here, Turner fails to advance any facts that demonstrate he acted diligently. Counsel’s
failure to pursue an appeal was discoverable as of February 23, 2012, when the failure to note an
appeal was discoverable from review of the public record. Wade v. Robinson, 327 F.3d 328, 333
(4th Cir. 2003); see Green v. Johnson, 515 F.3d 290, 305 (4th Cir. 2008). Although Turner could
have discovered his counsel’s failure to pursue an appeal as of that date, “to require that he do so
ignores the reality of the prison system and imposes an unreasonable burden on prisoners seeking
to appeal.” Granger v. Hurt, 90 F. App’x 97, 100 (6th Cir. 2004) (citing Wims, 225 F.3d at 190
n.4). While no “magic number” exists for the time afforded a reasonable prisoner to discover an
appeal has not been pursued, a petitioner must offer some evidence that he acted with due
diligence. See Ryan v. United States, 657 F.3d 604, 607–08 (7th Cir. 2011) (finding that “a
reasonable prisoner may take at least two months . . . to suspect that counsel has dropped the ball,
contact counsel or the court, wait for a response, and verify the suspicion”); Granger, 90 F. App’x
at 100 (finding petitioner acted with due diligence when two-month delayed discovery claim was

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supported by dated letter from his attorney and various state court filings seeking to perfect direct
appeal).
Here, at the latest, acting with due diligence, Turner could have discovered that his counsel
failed to note an appeal, within six months after the date for filing a notice of appeal expired. Cf.
El-Abdu’llah v. Dir., Va. Dep’t of Corr., No. 3:07CV494, 2008 WL 2329714, at *2 (E.D. Va. June
4, 2008) (“[W]hen counsel’s communications or lack thereof indicate that something is amiss with
a petitioner’s appeal, due diligence requires the petitioner to act on that information.” (citing
Shelton v. Ray, No. 7:05CV00271, 2005 WL 1703099, at *2 (W.D. Va. July 20, 2005); GonzalezRamos v. United States, Nos. 05 Civ. 3974 & 99 Cr. 1112(LAP), 2007 WL 1288634, at *8
(S.D.N.Y. May 2, 2007))).

Accordingly, under the present facts, a petitioner acting with

reasonable diligence would have contacted the courts and discovered that his appeal had not been
filed, at the very latest, by August 22, 2012. Therefore, the Court concludes that Turner is entitled
to a belated commencement of the limitation period for his § 2254 Petition, until, at the latest
August 22, 2012. Nevertheless, because Turner failed to file his § 2254 Petition until ten years
after that date, the § 2254 Petition remains barred by the one-year statute of limitations.
The Court further notes that equitable tolling2 would not render the § 2254 Petition timely.
See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (observing that a petitioner is required
“to demonstrate a causal relationship between the extraordinary circumstances on which the claim
for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the
petitioner, acting with reasonable diligence, could have filed on time notwithstanding the
extraordinary circumstances” (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990);
2

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)).
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Fisher v. Johnson, 174 F.3d 710, 716 (5th Cir. 1999))). “Simply put, [Turner] fails to demonstrate
some external impediment, rather than his own lack of diligence, prevented him from filing a
habeas petition in a timely fashion.” O’Neill v. Dir., Va. Dep’t of Corr., No. 3:10cv157, 2011 WL
3489624, at *6 (E.D. Va. Aug. 9, 2011) (citations omitted); cf. Rouse v. Lee, 339 F.3d 238, 246
(4th Cir. 2003) (en banc). Claim One will be DISMISSED as barred by the statute of limitations.
III. Conclusion
Respondent’s Motion to Dismiss (ECF No. 13) will be GRANTED. Turner’s claims will
be DISMISSED. Turner’s § 2254 Petition (ECF No. 3) will be DENIED. The action will be
DISMISSED. A certificate of appealability will be DENIED.
An appropriate Order will accompany this Memorandum Opinion.
It is so ORDERED.
/s//
Roderick C. Young
United States District Judge

Date: November 13, 2023
Richmond, Virginia

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