Clemmer v. Kiser
OPINION. Signed by Judge James P. Jones on 6/9/2017. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Case No. 7:16CV00319
By: James P. Jones
United States District Judge
Marcus Clemmer, 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 Marcus Clemmer, a Virginia inmate, challenges the validity of his
confinement on a judgment by the Circuit Court for the City of Danville. After
review of the record, I conclude that the respondent’s Motion to Dismiss must be
granted, because Clemmer’s petition is untimely filed.
On June 30, 2014, a jury convicted Clemmer of burglary, grand larceny,
possession of a controlled substance, and petty larceny third offense and the state
court sentenced him to seven years imprisonment. Clemmer did not pursue a
direct appeal, and thus his conviction became final ninety days later, on September
28, 2014. 1
Clemmer timely filed a petition for a writ of habeas corpus in the Supreme
Court of Virginia on September 18, 2015. On April 19, 2016, the court denied his
petition as procedurally barred under Slayton v. Parrigan, 205 S.E.2d 680, 682
(Va. 1974), cert. denied, 419 U.S. 1108 (1975). Clemmer then filed the present
petition in this court on July 8, 2016, raising nine claims, as follows:
1. The Supreme Court of Virginia erred in applying Slayton v. Parrigan
to his state habeas claims;
2. All of his state habeas claims were fairly presented to the Supreme
Court of Virginia;
3. The prosecution withheld exculpatory evidence at his trial;
4. Clemmer was denied the right to counsel on appeal;
5. The evidence was insufficient to prove Clemmer’s guilt of possession
of a controlled substance;
6. The evidence was insufficient to prove Clemmer’s guilt of grand
Clemmer obtained the removal of his appointed counsel after the jury’s verdict,
and informed the court that he would proceed pro se on appeal. Clemmer filed an
untimely direct appeal on February 27, 2015, which the Court of Appeals of Virginia
dismissed on July 8, 2015.
7. Clemmer was denied access to the courts during his trial and the posttrial proceedings because:
a. His counsel was ineffective;
b. Jail personnel denied him access to legal materials; and
c. He was denied a trial transcript for his habeas proceeding.
8. The trial court erred in denying his motion to dismiss the indictment
for possession of a controlled substance; and
9. Clemmer’s attorneys were ineffective for:
a. Not challenging the sufficiency of the evidence to establish that
the substance he possessed was a controlled substance at the
b. Not filing “suppression” motions requested by Clemmer;
c. Conducting an inadequate investigation of Clemmer’s defenses;
d. Not properly performing the duties of stand-by counsel; and
e. Not filing an appeal for Clemmer.
The Respondent moves to dismiss Clemmer’s habeas petition and Clemmer has
responded to the motion, making the case ripe for review.
STATUTE OF LIMITATIONS.
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a state prisoner must file his federal habeas petition within one year
from the latest of when: (1) his conviction became final by the conclusion of direct
review or the expiration of the time for seeking such review, (2) any illegal state
created impediment to filing was removed, (3) the United States Supreme Court
recognized a new, retroactively applied constitutional right, or (4) the factual
predicate of the claim could have been discovered through due diligence. 28
U.S.C. § 2244(d)(1). Clemmer has not alleged that any illegal impediment existed,
that the Supreme Court recognized a new retroactive right, or that the factual
predicates of his claims were undiscoverable.
A petitioner can “toll” the federal habeas statute of limitation in two ways:
statutory tolling and equitable tolling. Statutory tolling occurs when a petitioner
files a state habeas petition within the federal limitation period; the federal habeas
statute of limitation is then tolled for the duration of the state habeas proceeding.
28 U.S.C. § 2244(d)(2). Meanwhile, a petitioner is only 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.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544,
U.S. 408, 418 (2005)).
Clemmer’s § 2254 petition is time-barred under 28 U.S.C. § 2244(d).
Clemmer’s direct review process ended on June 30, 2014. His conviction became
final on September 28, 2014, when he failed to file a writ of certiorari to the
Supreme Court within ninety days. 2 Thus, the statute of limitation for Clemmer’s
federal habeas began to run on September 29, 2014. Clemmer did not file his state
habeas petition until September 18, 2015, 354 days after his conviction had
become final. Thereafter, his state habeas proceeding tolled the federal limitation
period until the Supreme Court of Virginia denied his petition on April 19, 2016.
Clemmer’s federal habeas statute of limitations began to run once again on
April 20, 2016, and the one-year statute of limitation expired twelve days later, on
May 2, 2016.
Clemmer did not file the current petition until July 8, 2016.
Accounting for tolling under § 2244, 432 days had accrued under the AEDPA
statute of limitations. 3
Accordingly, Clemmer did not file his federal habeas petition within the
one-year limitation period.
Further, Clemmer is not entitled to equitable tolling. Clemmer does not
demonstrate that he has been pursuing his rights diligently or that extraordinary
circumstances stood in his way and prevented timely filing. He also failed to
respond to a request for more information as to either (1) evidence contradicting
See Sup. Ct. R. 13 (“[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.).
Clemmer’s request for permission for a delayed appeal and his attempt to amend
his state habeas petition did not toll the limitation period. Under the AEDPA, a petitioner
is entitled to tolling for “[t]he time during which a properly filed application for State
post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2)
the filing dates, or (2) additional evidence concerning why he could not earlier
submit his § 2254 claims. 4
For the stated reasons, I conclude that Clemmer’s habeas petition is untimely
filed under 28 U.S.C. § 2244(d) and his pending motions are dismissed as moot.5
Therefore, I will grant Respondent’s Motion to Dismiss and deny Clemmer’s
A separate Final Order will be entered herewith.
DATED: June 9, 2017
/s/ James P. Jones
United States District Judge
A colorable claim of actual innocence can serve as a gateway to secure the
adjudication of an otherwise procedurally unreviewable claim. Schlup v. Delo, 513 U.S.
298, 315 (1995). Clemmer does not present any new compelling evidence unavailable at
trial or on appeal. See Burket v. Angelone, 208 F.3d 172, 183 n.10 (4th Cir. 2000)
(finding that since petitioner bears burden to raise cause and prejudice or actual
innocence, a court need not consider either if not asserted by petitioner).
Clemmer filed the following: “Motion to Dismiss Respondent’s 12(b)(6)
Motion,” ECF No. 37, “Motion for Evidentiary Hearing,” ECF No. 39, and “Motion to
Stay,” ECF No. 41. None of these motions affect the federal habeas statute of
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