Hunt v. Booker
Filing
23
OPINION. Signed by Judge James P. Jones on 3/28/2019. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
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DEREK DARRELL HUNT,
Petitioner,
v.
BERNARD BOOKER,
Respondent.
Case No. 7:18CV00187
OPINION
By: James P. Jones
United States District Judge
Derek Darrell Hunt, Pro Se Petitioner; Victoria Johnson, Assistant Attorney
General, Office of the Attorney General, Richmond, Virginia, for Respondent.
In this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, a
Virginia inmate proceeding pro se, contends that his confinement pursuant to a
2014 Judgment entered by a state court is unconstitutional. Upon review of the
record, I conclude that the respondent’s Motion to Dismiss must be granted,
because the petition is untimely filed.
I.
A grand jury of the Circuit Court for Campbell County returned Indictments
charging Derek Derrell Hunt with five counts of distribution of cocaine, third or
subsequent offense, in violation of Virginia Code Ann. § 18.2-248. Hunt pleaded
not guilty and was tried before a jury in June of 2014. During later habeas corpus
proceedings, the trial court summarized the trial evidence against Hunt:
On June 11, June 12, June 13, June 15, and June 21, 2012, Hunt
sold crack cocaine to a confidential informant who was working with
the Campbell County Sheriff’s Department. On each occasion, the
transactions were audio and video recorded and, in four of the
recordings, Hunt’s face is visible. The distinctive tattoos on Hunt’s
arm are also visible in the videos. After the June 21, 2012 drug
transaction, Investigator Dwayne Wade of the Campbell County
Sheriff’s Department Narcotics Division followed the car in which
Hunt was traveling and observed Hunt in the car.
Investigator Wade observed all of the transactions and
monitored the controlled buy operations. Investigator Wade testified
at trial that the confidential informant was financially compensated
and that, in his experience as a law enforcement officer, it was
common for drug dealers to sell their clients less than the agreed-upon
quantity of drugs in order to increase their profits. Investigator Wade
never told the confidential informant to target a particular person or
gave the confidential informant a set number of drug transactions that
he was required to complete. Both the confidential informant and his
nephew knew Hunt, and the confidential informant identified Hunt as
someone who would be likely to sell him drugs. At trial, the
confidential informant stated he bought crack cocaine from Hunt on
all five occasion[s] and denied tampering with or concealing any of
the crack cocaine he bought from Hunt.
Investigator Joseph Shepherd of the Campbell County Sheriff’s
Office and Investigator Gary Penn of the Altavista Police Department
were also involved in the controlled buy operation. Both testified at
trial that they had not tampered with any evidence received from the
confidential informant and that the confidential informant was
searched before and after each transaction and was not concealing any
contraband.
At trial, the jury viewed and listened to the recordings of each
of the five drug transactions.
Br. Supp. Mot. Dismiss Ex. 4, ECF No. 10-4 (paragraph numbers and record
citations omitted). The jury convicted Hunt on all five counts and recommended
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an aggregate sentence of thirty years. On October 30, 2014, the court imposed that
sentence, with no time suspended.
Hunt appealed, alleging a claim that the evidence was insufficient “because
the informant’s testimony was inherently incredible,” and a claim that the sentence
was excessive in violation of the Eighth Amendment. Id. at Ex. 2, ECF No. 10-2.
One reviewing judge refused Hunt’s Petition for Appeal, and in October of 2015, a
three-judge panel of the Court of Appeals of Virginia denied relief. Hunt appealed.
In an Order entered June 15, 2016, the Supreme Court of Virginia refused
assignment of error no. 2 of Hunt’s appeal and dismissed it as procedurally
defaulted under Supreme Court Rule 5:17(c)(1)(iii). Id. at Ex. 3, ECF No. 10-3.
During Hunt’s appeal proceedings, on November 19, 2015, he filed a
Motion to Correct Unlawful Sentence in the Circuit Court for Campbell County.
Id. at Ex. 2, at 4, ECF No. 10-2. The circuit court dismissed the motion in
February of 2016 for lack of jurisdiction, because it was not timely filed. See Va.
Sup. Ct. R. 1:1 (“All final judgments, orders, and decrees, irrespective of terms of
court, shall remain under the control of the trial court and subject to be modified,
vacated, or suspended for twenty-one days after the date of entry, and no longer.”).
Hunt appealed this jurisdictional dismissal to the Court of Appeals of Virginia,
which held that it did not have jurisdiction over the appeal and dismissed it by
Order dated October 25, 2016.
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Hunt then filed a timely Petition for a Writ of Habeas Corpus in the Circuit
Court for Campbell County on or about October 27, 2016. Among other claims,
Hunt alleged that his “right to due process was violated when the Commonwealth
failed to disclose material impeachment evidence regarding the ongoing criminal
investigation of the Alta Vista Police Department.” Id. at Ex. 4, ECF No. 10-4.
He based this claim on media reports from July of 2016, copies of which he
attached to his state petition. The circuit court dismissed the petition by Order
entered March 27, 2017, without conducting an evidentiary hearing.
Hunt appealed the circuit court dismissal. By Order dated October 17, 2017,
the Supreme Court of Virginia dismissed Hunt’s Petition for Appeal because he
failed to assign error as required by its Rule 5:17(c)(1)(i). Id. at Ex. 5, ECF 10-5.
Hunt moved for reconsideration and asked the Court to accept his petition because
of his pro se status and lack of access to legal materials. He also submitted a twopage list of Assignments of Error and pointed out that his petition included clearly
labeled claims for relief. By Order dated February 1, 2018, the Court construed
and denied Hunt’s motion as a Petition for Rehearing.
On April 23, 2018, Hunt filed his § 2254 petition in this court,1 alleging
these two grounds for relief:
1
Under Rule 3(d) of the Rules Governing Section 2254 Cases, a prisoner’s
habeas corpus petition is considered filed as of the day when he delivers it to prison
officials for mailing to the court. Hunt’s petition arrived at the clerk’s office on April 25,
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GROUND ONE: Hunt was denied due process of law when the
Commonwealth failed to disclose material impeachment evidence of
an elaborate scheme of criminal misconduct carried out by Altavista
police officers and informants in drug sting investigations.
....
GROUND TWO:
appellate counsel.
Hunt was denied effective assistance of
Pet. Attach. A at 8-9, ECF No. 1. The respondent has moved to dismiss Hunt’s
§ 2254 petition as untimely filed, or in the alternative, procedurally defaulted, or
without merit. Hunt has responded to the Motion to Dismiss, making the motion
ripe for consideration. Hunt also filed a Motion to Expand the Record under Rule
7 of the Rules Governing Section 2254 Cases, which I granted. Attached to the
Rule 7 motion are additional materials from the Altavista criminal investigation at
issue in Ground One, obtained through a request for public records after Hunt filed
his § 2254 petition. The respondent then filed a Response to the new evidence, and
Hunt filed a Reply.
II.
The one-year period of limitation for filing a habeas petition under § 2254
begins to run on the latest of four dates:
2018, in a “PRIORITY MAIL 2-DAY” envelope dated April 23, 2018. With no evidence
that Hunt delivered the petition to prison officials for mailing any earlier than April 23,
2018, I will consider that day as the date of filing.
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(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). A judgment becomes final once the availability of appeal
is exhausted, the time for filing a petition for a writ of certiorari in the United
States Supreme Court has expired, or the Supreme Court has denied certiorari from
the highest state court’s denial on direct appeal. See Clay v. United States, 537
U.S. 522, 525 (2003).
Hunt’s convictions became final, and his federal habeas time clock under
§ 2244(d)(1)(A) began to run, on September 13, 2016, 90 days after the Supreme
Court of Virginia refused his direct appeal, and he failed to file a petition for a writ
of certiorari. U.S. Sup. Ct. Rule 13(1) (setting 90 days from entry of state court
final judgment to file certiorari petition). On October 27, 2016, after 44 days of
the federal filing period had elapsed, Hunt filed his state habeas petition in the
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Circuit Court for Campbell County. While that petition was pending, the federal
filing period was tolled. See 28 U.S.C. § 2244(d)(2) (providing that “properly
filed” application for state post-conviction or other collateral review tolls federal
filing period). After the circuit court dismissed the petition on March 27, 2017, the
filing period began running again. The filing period expired 321 days later, on
February 12, 2018, more than two months before Hunt filed his § 2254 petition.
Hunt contends that under 28 U.S.C. § 2244(d)(2), the federal filing period
must be tolled during the time when his state habeas proceedings were pending.
[A]n application [for state post-conviction review] is “properly filed”
when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings. These usually prescribe,
for example, the form of the document, the time limits upon its
delivery, the court and office in which it must be lodged, and the
requisite filing fee.
Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis added). 2 Just because a court
files a particular application and it remains pending for a while does not mean that
it was properly filed. “If, for example, an application is erroneously accepted by
the clerk of a court lacking jurisdiction, . . . it will be pending, but not properly
filed.” Id. at 9. When calculating tolling under § 2244(d)(2), the reviewing court
may only “exclude the time during which state collateral proceedings pursued by
2
I have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
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petitioner were properly filed” and pending. Christian v. Baskerville, 232 F. Supp.
2d 605, 606 (E.D. Va. 2001).
Hunt’s habeas appeal was never properly filed under Virginia law. Supreme
Rule 5:17(c)(1), requires that a Petition for Appeal must include, under a separate
heading entitled “Assignments of Error,” a list of the specific errors in the ruling
below that the appellant is challenging. This list must also provide an “exact
reference” to the part of the trial court record where the error is preserved. Va.
Sup. Ct. Rule 5:17(c)(1). The rule also states that a petition that does not include
Assignments of Error will be dismissed. Va. Sup, Ct. R. 5:17(c)(1)(i). The
Supreme Court of Virginia expressly found that Hunt’s habeas appeal petition
failed to comply with Rule 5:17(c)(1)(i) and dismissed the appeal on that
procedural ground. When Hunt moved for reconsideration of that finding, argued
that he had substantially complied with the rule, and submitted a belated list of
Assignments of Error, the Supreme Court of Virginia denied his motion. On
habeas review, I cannot second-guess the Supreme Court of Virginia’s
interpretation or application of its own rule. Estelle v. McGuire, 502 U.S. 62, 72
(1991) (finding no authority for federal habeas court to reverse state court’s
holding based on interpretation of state law). Based on the Supreme Court of
Virginia’s determination that Hunt did not properly file his state habeas appeal, I
cannot apply § 2244(d)(2) to exclude any of the time when that petition was
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pending.3 See Christian, 232 F. Supp. 2d at 607 (holding that “appeal of the denial
of habeas relief” was “never properly filed pursuant to § 2244(d)(2)” because
petitioner “failed to meet the form requirements for properly filing an appeal in the
Supreme Court of Virginia” under Va. Sup. Ct. R. 5:17(c)); Escalante v. Watson,
488 Fed. App’x 694, 697-98 (4th Cir. 2012) (explicitly agreeing with Christian’s
logic and finding that petitions failing to comply with Va. Sup. Ct. R. 5:17(c) do
not toll the statute of limitations under § 2244(d)(2)).
I also cannot give Hunt the benefit of tolling under § 2244(d)(2) during the
time between the circuit court’s dismissal of his state habeas petition and his filing
of the habeas appeal in the Supreme Court of Virginia. Because Hunt never
properly filed his habeas appeal, his state habeas proceedings “‘ceased to be
pending on the date of the trial court’s decision,’” which was March 27, 2017.
Christian, 232 F. Supp. 2d at 606 n.1 (quoting Rodgers v. Angelone, 113 F. Supp.
2d 922, 930 (E.D. Va. 2000), aff’d, 5 F. App’x 335 (4th Cir. 2001) (unpublished).
Hunt also seeks statutory tolling to start his one-year federal filing period
when he allegedly first discovered, through news articles in July 2016, suppressed
evidence about the criminal investigation of the Altavista Police Department
(“APD”). At that time, however, Hunt’s convictions were not yet final under
3
For the same reasons, Hunt’s circuit court Motion to Correct and his appeal of
the circuit court’s dismissal of that motion cannot toll the filing period under
§ 2244(d)(2). Both the motion itself and the appeal were dismissed for lack of
jurisdiction and were, therefore, not properly filed for purposes of statutory tolling.
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§ 2244(d)(1)(A). Accordingly, whether characterized as the elimination of a statecreated impediment under § 2244(d)(1)(B) or as the factual predicate of his claim
under § 2244(d)(1)(D), the July 2016 discovery does not affect the calculation of
Hunt’s federal filing period as I have already described it.
Hunt apparently seeks to reset the federal time clock to begin in July 2018,
when “in response to a request for public records,” the special prosecutor
“disclosed approximately 1700 pages of documents related to his investigation of
the APD and his prosecution of APD Chief Walsh.” Mot. to Expand R. 2, ECF
No. 17. Under § 2244(d)(1)(D), “the factual predicate of a petitioner’s claims
constitutes the vital facts underlying [the] claims,” not merely “evidence that might
support his claims.” McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir. 2007). This
section also requires proof of a petitioner’s active investigation, since the new
filing period under § 2244(d)(1)(D) begins when a petitioner’s claim “could have
been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D)
(emphasis added).
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 . . .
support his claim.”); Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004) (“A
desire to see more information in the hope that something will turn up differs from
‘the factual predicate of [a] claim or claims’ for purposes of § 2244(d)(1)(D).”).
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Hunt fails to demonstrate why the limitations period should be reset to July
of 2018. First, he does not demonstrate that in the summer of 2016, immediately
after he allegedly first learned of the APD investigation, he diligently pursued
options to obtain such records, by filing a request for public records or other
means. Second, at the most, the new files provide additional evidence that Hunt
believes supports his already stated claim that some members of the APD,
including the chief of police, were involved in illegal activity at the time of his
arrest and trial. He does not demonstrate that the new documents create grounds
for any new habeas claims or show that any officer or confidential informant
directly related to Hunt’s case was involved in criminal activities or demonstrated
a lack of truthfulness. Therefore, the 2018 disclosure presents essentially the same
factual predicate as the 2016 documents did and cannot reset the statute of
limitations.4 See 28 U.S.C. § 2244(d)(1)(D); McAleese, 483 F.3d at 214.
Finally, Hunt argues for equitable tolling during the pendency of his habeas
appeal. Equitable tolling occurs only if a petitioner 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). Hunt asserts that because of his limited education and legal knowledge, he
4
For similar reasons, Hunt fails to show that his delay in obtaining additional
materials about the ADP investigation was caused by an “impediment to filing . . .
created by State action in violation of the Constitution or laws of the United States.” 28
U.S.C. § 2244(d)(1)(B).
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could not have known that his habeas appeal petition was not properly filed until
he received the Supreme Court of Virginia’s dismissal order. Procedural errors
arising from such circumstances as lack of legal education or materials are neither
extraordinary nor external to a party’s control, as required to trigger equitable
tolling. Rouse v. Lee, 339 F.3d 238, 248 (4th Cir. 2003) (collecting cases holding
that attorney error, including miscalculation of appeal timelines, does not present
extraordinary circumstances beyond a party’s control); see United States v. Sosa,
364 F.3d 507, 512 (4th Cir. 2004) (collecting cases holding that “ignorance of the
law is not a basis for equitable tolling”). Thus, I find no ground for equitable
tolling of the time between the dismissal of Hunt’s circuit court habeas petition and
the dismissal of his habeas appeal or any other time period. 5
For the stated reasons, I conclude that Hunt’s federal habeas petition is
untimely filed under 28 U.S.C. § 2244(d), and he is not entitled to statutory or
equitable tolling of that period.
On that ground, I will grant the Motion to
Dismiss.6
A separate Final Order will be entered herewith.
5
I also find that Hunt has no viable claim of actual innocence as a basis for
invoking equitable tolling of the federal habeas limitations period. See McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013) (holding that defendant who demonstrates actual
innocence of his crime of conviction may, in extraordinary circumstances, proceed with a
habeas petition that is otherwise statutorily time-barred under § 2244(d)(1)).
6
Because the petition was not timely filed, I need not address the respondent’s
alternative arguments that Hunt’s claims are procedurally barred and without merit.
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DATED: March 28, 2019
/s/ James P. Jones
United States District Judge
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