Turner v. Clarke

Filing 8

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 1/5/2016. (tvt)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
CLARENCE TURNER,
Petitioner,
v.
HAROLD CLARKE,
Respondent.

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Civil Action No. 7:15cv00200
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Clarence Turner, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 to challenge his criminal judgment entered by the Amherst
County Circuit Court. This matter is before the court for preliminary review, pursuant to Rule 4
of the Rules Governing Section 2254 Cases. After reviewing the record, the court dismisses the
petition as time barred.
I.
On August 21, 2008, the Amherst County Circuit Court convicted Turner of two counts
of robbery, in violation of Virginia Code § 18.2-58; attempted robbery, in violation of Virginia
Code §§ 18.2-58 and 18.2-26; abduction, in violation of Virginia Code § 18.2-47; wearing a
mask in public, in violation of Virginia Code § 18.2-422; and five counts of using a firearm in
the commission of a felony, in violation of Virginia Code § 18.2-53.1. The circuit court
sentenced Turner to a total of 99 years’ incarceration, with 76 years suspended. According to
his petition, Turner appealed unsuccessfully to the Court of Appeals of Virginia, and the
Supreme Court of Virginia denied his subsequent appeal on December 9, 2009. Turner did not
appeal to the Supreme Court of the United States. On October 15, 2013, Turner filed a petition
for a writ of habeas corpus with the circuit court, which he states was dismissed as untimely filed
and without merit. Turner appealed that decision to the Supreme Court of Virginia, which

denied his appeal on November 17, 2014.
Turner filed the instant petition on April 12, 2015. See R. Gov. Section 2254 Cases 3(d)
(describing the prison-mailbox rule). The court conditionally filed the petition, advised Turner
that the petition appeared to be untimely filed, and provided him the opportunity to explain why
the court should consider it timely filed. Turner responded and asserted that his petition is timely
filed pursuant to 28 U.S.C. § 2244(d)(1)(D).1
II.
Habeas petitions filed under § 2254 are subject to a one-year limitations period. 28
U.S.C. § 2244(d)(1).2 A petitioner must demonstrate either the timeliness of his petition
pursuant to § 2244(d) or that the principle of equitable tolling applies in his case. See Hill v.
Braxton, 277 F.3d 701 (4th Cir. 2002); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000).
Otherwise, an untimely petition may be dismissed by a federal district court after appropriate
notice is given to the petitioner. See Hill, 277 F.3d at 707.
Turner alleges that his petition is timely filed under § 2244(d)(1)(D) because he could not
have discovered his claims until the Supreme Court of Virginia’s decision on November 1, 2012,
in Brown v. Commonwealth, 733 S.E.2d 638 (Va. 2012).3 However, Turner’s petition is not

1

Turner did not argue timeliness under subsections (A) through (C).

2

The one-year period begins to run on the latest of four dates:
(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.
28 U.S.C. § 2244(d)(1).
3

In Brown, the state court held that “multiple sentences imposed pursuant to [Virginia] Code § 18.2-53.1

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based on new facts; rather, it is based on new law. Accordingly, the holding in Brown did not
reset the federal limitations period for Turner’s petition and § 2244(d)(1)(D) is inapplicable.4
Under § 2244(d)(1)(A), Turner’s conviction became final on March 9, 2010, when his
time to file a direct appeal to the Supreme Court of the United States expired. Therefore, Turner
had until March 9, 2011 to timely file a federal habeas petition. Turner did not meet this
deadline; in fact, by that date, Turner had not yet filed his state habeas petition.5 Accordingly,
Turner’s federal petition is time barred unless he demonstrates grounds for equitable tolling of
the limitations period.6
Equitable tolling is available only in “those rare instances where, due to circumstances
external to the party’s own conduct, it would be unconscionable to enforce the limitations period
against the party and gross injustice would result.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.
2003) (internal quotation marks omitted) (citing Harris, 209 F.3d at 330). Thus, a petitioner
must have “been pursuing his rights diligently, and . . . some extraordinary circumstance stood in
his way” to prevent timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010).
Turner’s lack of knowledge about legal process or the statutory deadline for federal

may run concurrently.” 733 S.E.2d at 640. In reaching that result, the court overruled precedent that stated such
sentences “may not be run concurrently.” Id. at 639. Turner was convicted of five counts under Virginia Code
§ 18.2-53.1, and the circuit court ran the sentences on these convictions consecutively. Thus, Turner alleges that
these consecutive sentences are now unlawful in light of Brown.

4
 The court notes that even if it used Turner’s date of November 1, 2012, to start the limitations period, his
federal habeas petition would still be untimely. Turner filed his federal habeas petition on April 12, 2015, almost
two and half years after November 1, 2012. Turner’s state habeas petition was not “properly filed” and, therefore,
did not toll the limitations period. § 2244(d)(2) (The one-year limitations period is tolled while a prisoner’s
“properly filed application for state post-conviction or other collateral review” is “pending.”); Artuz v. Bennett, 531
U.S. 4, 8 (2000) (time limits on state petitions are “condition[s] to filing,” and that an untimely petition would not be
deemed “properly filed”).

5
Turner’s one-year limitation period had already run by the time he filed his state habeas petition;
therefore, Turner’s state petition did not toll the limitations period. § 2244(d)(2).
6

Turner’s allegations do not support running the limitations period pursuant to §§ 2244(d)(1)(B) or

(d)(1)(C).

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habeas relief does not support granting such extraordinary relief. Harris, 209 F.3d at 330.
Furthermore, the court does not find any extraordinary circumstances in this record that
prevented Turner from filing a timely petition. See, e.g., United States v. Sosa, 364 F.3d 507,
512 (4th Cir. 2004) (noting that pro se status and ignorance of the law does not justify equitable
tolling); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (noting that unfamiliarity with the
law due to illiteracy or pro se status does not toll limitations period). Accordingly, Turner is not
entitled to equitable tolling. Turner filed his federal habeas petition more than one year after the
limitations period began to run, and, therefore, the court dismisses the petition for a writ of
habeas corpus as time barred.
Entered: January 5, 2016.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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