Shortt v. Director, Virginia Department of Corrections

Filing 13

OPINION. Signed by Judge James P. Jones on 2/27/2017. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
GARY SHORTT,

)
)
Petitioner,
)
)
v.
)
)
DIRECTOR, VIRGINIA DEPARTMENT )
)
OF CORRECTIONS,
)
Respondent.
)

Case No. 7:16CV00017
OPINION
By: James P. Jones
United States District Judge

Gary Shortt, Pro Se Petitioner; Eugene Murphy, Senior Assistant Attorney
General, Richmond, Virginia, for Respondent.
In this pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254,
the petitioner Gary Shortt, a Virginia inmate, contends that his due process rights
were violated in connection with a state probation revocation proceeding. After
review of the record, I conclude that the respondent’s Motion to Dismiss must be
granted, because Shortt’s petition is untimely filed, procedurally barred, and
without merit.
I.

Background.

As a result of convictions in the Tazewell County Circuit Court in 1998 and
1999, Shortt incurred a lengthy suspended sentence. Probation Officer John Flynn
wrote the state circuit judge, Donald Mullins, on January 27, 2000, requesting a
probation revocation hearing because Shortt had failed drug tests, failed to

maintain his employment, failed to notify his probation officer of his failure to
maintain employment, and left the state of Virginia without permission. Judge
Mullins approved the request. On July 26, 2000, authorities arrested Shortt and
committed him to the Tazewell County jail. On August 18, 2000, attorney Shea
Cook was appointed as counsel for the probation revocation hearing.

The

probation revocation hearing was originally set for August 29, 2000, but was
continued. Before the revocation hearing was held, however, a Tazewell County
grand jury indicted Shortt on multiple new felony counts. Attorney Rich Patterson
was appointed to represent Shortt on the new charges, and on February 23, 2001,
Shortt pleaded guilty to robbery, use of a firearm in a robbery, forty-nine counts of
forgery, and two counts of grand larceny. Sentencing was scheduled for June 26,
2001.
Sentencing on the forgery, robbery, and grand larceny charges took place as
scheduled, with Judge Mullins presiding and Patterson as Shortt’s counsel.1 On
the same day, the court also held Shortt’s probation revocation hearing; however,
Shortt’s probation revocation counsel (Cook) was not notified. Instead, Patterson
appeared on Shortt’s behalf in both the sentencing and the probation revocation
hearings. Judge Mullins found Shortt guilty of violating the terms and conditions
1

Shortt referred to conflicting sentencing dates in his habeas petition, including
July 16, 2001 and July 26, 2001. According to the Supreme Court of Virginia, the
sentencing and probation revocation hearing occurred on June 26, 2001.

-2-

of his probation and revoked Shortt’s suspended sentences. Shortly after the
hearing, Judge Mullins retired from office without entering any written orders.
On December 10, 2001, Circuit Judge Charles Smith entered a formal
probation revocation order. On April 12, 2002, Circuit Judge Michael Moore
entered an amended order of probation revocation that was made nunc pro tunc to
December 10, 2001. Judge Moore’s amendment included the indictment numbers
for the suspended sentences, which Judge Smith had failed to include in his
December 10, 2001 order.
Shortt, through counsel, filed a petition for a writ of habeas corpus in the
Tazewell County Circuit Court on November 4, 2003. On October 5, 2009, the
court granted habeas relief on two of the nine claims that he raised: the court
corrected an improper determination of credit for time served and allowed a
delayed appeal of the probation revocation judgment. On March 30, 2010, Shortt
appealed to the Supreme Court of Virginia regarding his seven dismissed habeas
claims, but the court dismissed the petition for appeal on December 10, 2010, as
not timely filed.
Shortt filed a belated direct appeal of the probation revocation judgment to
the Court of Appeals of Virginia, which the court denied on October 26, 2011.
Shortt then filed an appeal to the Supreme Court of Virginia, but the court refused
the appeal on April 4, 2012.

-3-

On January 19, 2016, Shortt filed a Petition for a Writ of Habeas Corpus in
this court, asserting the following due process claims:
A. He had no notice of the probation revocation hearing;
B. His counsel for the probation revocation hearing was not present;
C. No specific finding was made of which condition of probation was
violated;
D. The revocation orders were entered by a judge different from the
one who made the revocation determination.
Pet’r’s Br. 3, ECF No. 1. Respondent moves to dismiss Shortt’s habeas claims as
untimely, procedurally barred, and without merit, and Shortt has responded to the
motion.
II.

Statute of Limitations.

Shortt’s § 2254 petition is barred as untimely by Section 101 of the
Antiterrorism and the Effective Death Penalty Act of 1996 (“AEDPA”), which
requires a state prisoner to file his petition for a writ of habeas corpus within one
year of completion of the state’s direct review process, subject to tolling while any
properly filed state collateral review proceeding is pending. 28 U.S.C. § 2244.
Shortt’s direct review process ended when the Supreme Court of Virginia denied
his appeal on April 4, 2012. Shortt’s conviction became final ninety-one days later
on July 4, 2012, when Shortt failed to file a writ of certiorari to the Supreme Court

-4-

of the United States. 2 Therefore, Shortt’s federal habeas filing deadline was July 4,
2013. 3 Shortt failed to file this § 2254 petition until January 19, 2016, more than
two years after the statute of limitations for federal habeas had expired.
The AEDPA statute of limitations “does not set forth ‘an inflexible rule
requiring dismissal whenever’ its ‘clock has run.’” Holland v. Florida, 560 U.S.
631, 645 (2010) (quoting Day v. McDonough, 547 U.S. 198, 208 (2006)). Instead,
“a ‘petitioner’ is ‘entitled to equitable tolling’ 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.” Id. at 649 (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)). “[U]nprofessional attorney conduct may, in certain
circumstances, prove ‘egregious’ and can be ‘extraordinary,’” but “‘a garden
variety claim of excusable neglect, such as a simple ‘miscalculation’ that leads a
lawyer to miss a filing deadline, does not warrant equitable tolling.” Id. at 651-52
(quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990); Lawrence v.
Florida, 549 U.S. 327, 336 (2007)) (internal citations omitted).

Generally,

“[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling,
2

See Sup. Ct. R. 13(1) (“[A] petition for a writ of certiorari to review a judgment
in any case . . . is timely when it is filed with the Clerk of this Court within 90 days after
entry of the judgment.); Clay v. United States, 537 U.S. 522 (2003).
3

The one-year period of limitation runs from the latest of “the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Shortt’s state habeas proceedings
concluded in 2010, and thus had no bearing on his filing deadline.
-5-

particularly in the postconviction context where prisoners have no constitutional
right to counsel.” Lawrence, 549 U.S. at 336-37.
Shortt argued that the time bar should not apply because counsel misled him
into believing that counsel’s representation would continue to the federal courts.
However,

Shortt’s

attorney

retainer

agreement

specifically

states

that

representation would be for (1) a Tazewell County Circuit Court state habeas
petition and (2) a petition for a delayed appeal from the final judgment of
probation violation.
agreement.

Counsel performed both tasks required by the retainer

Shortt has offered no evidence beyond conclusory statements of

ineffective assistance, 4 and although counsel admittedly failed to properly file
Shortt’s state habeas appeal in the Supreme Court of Virginia, Shortt cannot prove
that the mistake was egregious or extraordinary. Counsel communicated that the
appeal process that he had agreed to undertake was exhausted, that he would
continue to pursue alternative relief, including the Governor’s Office. Therefore,
any mistake made does not reach the extraordinary level required for equitable
tolling.

4

“[T]he attorney during the initial state proceedings misled me . . . and it wasn’t
until after I discovered that his representation did not go to the federal courts as I was led
to believe, [and therefore] I should be excused from the time constraint.” Pet’r’s Reply to
Mot. to Dismiss 4-5, ECF No. 11.

-6-

Regardless, Shortt has not shown that he diligently pursued his rights.
According to Shortt’s petition, he did not follow up with his postconviction
attorney until November 16, 2014. If Shortt had acted sooner, he would have
discovered that the deadline for filing a federal habeas petition had passed more
than a year before.
III.

Exhaustion and Procedural Default.

To obtain federal habeas relief, Shortt 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). The federal habeas court may not grant a writ of habeas
corpus based on any claim that a state court decided on the merits unless that
adjudication:
(1) [R]esulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) [R]esulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 403-13 (2000).
“Where, as here, the state court’s application of governing federal law is
challenged, it must be shown to be not only erroneous, but objectively
unreasonable.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Under this standard,
“[a] state court’s determination that a claim lacks merit precludes federal habeas

-7-

relief so long as fairminded jurists could disagree on the correctness of the state
court’s decision.”

Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal

quotation marks and citation omitted).
“[A] federal court may not grant a writ of habeas corpus to a petitioner in
state custody unless the petitioner has first exhausted his state remedies by
presenting his claims to the highest state court.” Baker v. Corcoran, 220 F.3d 276,
288 (4th Cir. 2000) (citing 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526
U.S. 838, 842 (1999)). To meet the exhaustion requirement, a petitioner “must
have presented to the state court both the operative facts and the controlling legal
principles.” Kasi v. Angelone, 300 F.3d 487, 501-02 (4th Cir. 2002) (internal
quotation marks and citation omitted). “A claim that has not been presented to the
highest state court nevertheless may be treated as exhausted if it is clear that the
claim would be procedurally barred under state law if the petitioner attempted to
present it to the state court.” Baker, 220 F.3d at 288 (citing Gray v. Netherland,
518 U.S. 152, 161 (1996)). If a state court expressly bases its dismissal of a claim
on a state procedural rule, and that procedural rule provides an independent and
adequate ground for the dismissal, the federal habeas version of that claim is also
procedurally barred. Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (citing
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).

-8-

Shortt’s Claims A and B are exhausted, because they were presented on
direct appeal and in state habeas proceedings. In Shortt’s state habeas proceedings,
the Tazewell County Circuit Court found Claim C procedurally defaulted under
Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), because Shortt could have
brought the claim at trial or on direct appeal, but failed to do so. Slayton is an
adequate and independent state law procedural ground that precludes federal
habeas review from considering the merits of claims. Fisher v. Angelone, 163 F.3d
835, 844 (4th Cir. 1998).
Shortt raised Claim D in his state habeas petition, but only as a state law
issue. “AEDPA’s requirements reflect a ‘presumption that state courts know and
follow the law.’”

Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (quoting

Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). Also, “a determination of a factual
issue made by a State court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
Generally, “it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S.
62, 67-68 (1991). Federal habeas courts do not intervene in matters of state law
“unless it impugns the fundamental fairness of the trial.” Stockton v. Virginia, 852
F.2d 740, 748 (4th Cir. 1988) (citing Grundler v. North Carolina, 283 F.2d 798,

-9-

802 (4th Cir. 1960)). The Supreme Court has “defined the category of infractions
that violate ‘fundamental fairness’ narrowly.

Beyond the specific guarantees

enumerated in the Bill of Rights, the Due Process Clause has limited operation.”
Estelle, 502 U.S. at 73 (quoting Dowling v. United States, 493 U.S. 342, 352
(1990)). A state court error in interpreting state law does not give rise to a federal
Due Process issue unless it is “so gross, conspicuously prejudicial, or otherwise of
such magnitude that it fatally infects the trial.” McCafferty v. Leapley, 944 F.2d
445, 452 (8th Cir. 1991).
Shortt argued that he had a constitutional right to have the same judge who
held the revocation hearing actually enter the order, but he cites no law, precedent,
constitutional rule, or any other legal basis. Even though situations where judges
do not personally fulfill the entering of an order after holding a hearing are rare,
some precedent exists. For example, in Wilson v. Hofbauer, No. 2:06-CV-179,
2009 WL 33369, at *3 (W.D. Mich. Jan. 6, 2009), the petitioner claimed that “he
was denied a fair trial when the trial judge was replaced by another judge.” The
district court rejected the petitioner’s claim, however, stating, “[t]he [substitute]
judge did nothing that required his presence at trial or make any decision that was
dependent in any way on any information presented during the trial.” Id. (citation
omitted). In Shortt’s case, Judge Mullins had already made the decision to revoke
Shortt’s probation. Once Judge Mullins retired, a substitute judge simply turned

-10-

the decision into an order. The main concerns of judicial substitution do not exist
in the probation revocation context. Revocation is not an overly complex trial
process where a substitute judge might make a trial seem less important to the jury,
prejudice the case, or make complicated determinations based solely on a
transcript.

And even if the substitution of judges did implicate Shortt’s

constitutional rights, he cannot prove prejudice. His prior probation violations and
felony guilty pleas would have revoked his suspended sentences. Therefore, the
substitution of judges did not implicate Shortt’s due process rights.
Further, the Supreme Court of Virginia dismissed claims C and D in Shortt’s
state habeas appeal because of his failure to file a timely appeal under Rule
5:17(a)(1). The Fourth Circuit has held that Rule 5:17(a)(1) is an adequate and
independent state ground barring federal habeas review. O’Dell v. Netherland, 95
F.3d 1214, 1244 (4th Cir. 1996).
Shortt failed to file a timely petition for appeal under Rule 5:17(a)(1);
therefore, his claims are procedurally barred, and he cannot show prejudice 5 or a
fundamental miscarriage of justice.6

5

Even if Shortt could show cause for failing to timely file his habeas appeal,
Shortt cannot prove that a different outcome would result. Shortt violated his probation
in several ways: he (1) failed drug tests, (2) quit his job without telling his probation
officer, (3) left the state without notice, and (4) pleaded guilty to numerous additional
felonies.

-11-

IV.

Excuse for Default.

Shortt has also argued that Martinez v. Ryan, 566 U.S. 1 (2012), excuses his
procedural defaults.

To show cause for his procedural defaults, Shortt must

identify “something external to the petitioner, something that cannot fairly be
attributed to him [that] . . . impeded [his] efforts to comply with the State’s
procedural rule.” Coleman, 501 U.S. at 753 (internal quotation marks and citation
omitted). “There is no constitutional right to an attorney in state post-conviction
proceedings,” and as a general rule, “a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.” Id. at 752.
However, the Supreme Court carved out a narrow exception to Coleman in
Martinez. Attorney errors during an “initial-review collateral proceeding” can
constitute “cause” to excuse a procedural default and permit federal habeas review
if four conditions are met:
(1) the claim of “ineffective assistance of trial counsel” was a
“substantial” claim; (2) the “cause” consisted of there being “no
6

First, Shortt admitted in his petition that he does not seek to prove his actual
innocence. See Schlup v. Delo, 513 U.S. 298 (1995). Second, Shortt argued that his due
process rights were violated when his probation revocation attorney did not receive notice
or appear. The Supreme Court held in Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973),
“there will remain certain cases . . . [that] will require that the State provide at its expense
counsel for indigent probationers or parolees.” Unlike Scarpelli, where the probationer
went unrepresented, Shortt had Patterson as his counsel during the probation revocation
hearing. Shortt’s appointed counsels, Patterson and Cook, had previously discussed
strategy, and had come to an agreement − that Patterson would represent Shortt at both
hearings and present Shortt’s mitigating evidence.

-12-

counsel” or only “ineffective” counsel during the state collateral
review proceeding; (3) the state collateral review proceeding was the
“initial” review proceeding in respect to the “ineffective-assistanceof-trial-counsel claim”; and (4) state law requires that an “ineffective
assistance of trial counsel [claim] . . . be raised in an initial-review
collateral proceeding.”
Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (citing Martinez, 132 S. Ct. at
1318-19, 1320-21)).
Shortt has faulted his state habeas and direct appeal attorney for failing to
advise him regarding the proper time to file his federal habeas petition. In order
for Martinez to apply, Shortt must have alleged ineffective assistance of counsel in
his initial review proceedings.

Initial-review collateral proceedings are the

“collateral proceedings which provide the first occasion to raise a claim of
ineffective assistance at trial.”7 Martinez, 132 S. Ct. at 1315. Therefore, the
Tazewell County Circuit Court’s consideration of his state habeas petition was
Shortt’s initial-review collateral proceeding. Shortt’s alleged ineffective assistance
of counsel did not occur until counsel failed to advise Shortt of the filing deadline
for his federal habeas petition. Thus, since counsel’s failure did not occur in
Shortt’s initial state habeas petition in the Tazewell County Circuit Court, Martinez
cannot apply.
7

Martinez “does not concern attorney errors in other kinds of proceedings,
including appeals from initial-review collateral proceedings, second or successive
collateral proceedings, and petitions for discretionary review in a State’s appellate
courts.” Martinez, 132 S. Ct. at 1320.

-13-

V.
For the stated reasons, I conclude that Shortt’s habeas claim is untimely filed
under 28 U.S.C. § 2244(d), procedurally defaulted, and without merit. Therefore, I
will grant the Motion to Dismiss.
A separate Final Order will be entered herewith.
DATED: February 27, 2017
/s/ James P. Jones
United States District Judge

-14-