Dulaney v. United States of America
Filing
391
MEMORANDUM OPINION AND ORDER as to Matthew Lee Dulaney; denying 208 MOTION to Vacate, Set Aside or Correct Sentence (2255) by Matthew Lee Dulaney; confirming and adopting 307 Proposed Findings and Recommendations; directing Clerk to remove these cases from the Court's active docket. Signed by Judge David A. Faber on 9/23/2011. (cc: attys; any unrepresented party) (tmr)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
AT PARKERSBURG
MATTHEW LEE DULANEY,
Movant,
v.
Case No. 6:08-cv-00859
Case No. 6:09-cv-00372
(Criminal No. 6:01-cr-00098-1
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Before the court are Petitioner Matthew Lee Dulaney’s
(Dulaney) two Motions to Vacate, Set Aside or Correct Sentence by
a Person in Federal Custody, pursuant to 28 U.S.C. § 2255 (Doc. #
208 in 6:08-cv-00859 and Doc. # 289 in 6:09-cv-372).
For the
reasons enumerated below, Mr. Dulaney’s motions are DENIED.
I. Factual and Procedural History
Defendant was convicted of one count of bank robbery by
force or violence following a jury trial in 2001.
On December 3,
2001, Mr. Dulaney was sentenced to 135 months of imprisonment, to
be served consecutively to state sentences for aggravated robbery
and breaking and entering (imposed in 2000).
Mr. Dulaney
appealed, and the United States Court of Appeals for the Fourth
Circuit upheld Mr. Dulaney’s conviction on October 15, 2002.
Following the Fourth Circuit’s decision, Mr. Dulaney appealed to
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the United States Supreme Court for a writ of certiorari, which
request the Supreme Court denied on March 24, 2003.
Mr. Dulaney
filed his first federal habeas corpus petition (Doc. # 208 in
6:08-cv-00859) on June 20, 2008, and his second petition (Doc. #
289 in 6:09-cv-372) on April 15, 2009.
The United States filed a
motion to dismiss Mr. Dulaney’s petition as untimely on July 1,
2008.
By Standing Order, these actions were referred to United
States Magistrate Judge Mary E. Stanley for submission of
findings and recommendations regarding disposition, pursuant to
28 U.S.C. § 636(b)(1)(B).
Magistrate Judge Stanley submitted to
the court her Proposed Findings and Recommendation (“PF&R”) on
September 23, 2009, in which she recommended that the district
court grant the United States’ motion to dismiss.
In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to Magistrate Judge Stanley’s
Proposed Findings and Recommendation.
Mr. Dulaney filed
objections to Magistrate Judge Stanley’s PF&R on October 9, 2009.
The court now considers each of Mr. Dulaney’s objections in turn.
Objection I
Mr. Dulaney’s first objection is that the United States
failed to timely raise the affirmative defense that his 2255
petition was time-barred under AEDPA’s one-year statute of
2
limitations.
As such, Mr. Dulaney argues that the United States
effectively waived the untimeliness defense.
Mr. Dulaney’s
argument is based on the United States’ response to his second
federal habeas corpus petition (Doc. # 289 in 6:09-cv-372), in
which the United States does not appear to have filed a motion to
dismiss the petition as untimely filed.
Mr. Dulaney’s objection is duplicitous.
A review of the
record in 6:08-cv-00859 immediately shows that on July 1, 2008,
approximately ten days after Mr. Dulaney filed his first federal
habeas corpus petition, the United States filed its motion to
dismiss petition as untimely (Doc. # 217).
In its motion, the
United States clearly articulates its argument that under AEDPA’s
one-year statute of limitations Mr. Dulaney’s petition is timebarred.
The fact that the United States did not raise this issue
in Mr. Dulaney’s second habeas corpus case, which was crossreferenced with the first is of no consequence.
Both of Mr.
Dulaney’s identical motions are motions for relief under 28
U.S.C. § 2255, based on the same facts and arguments, and as
such, both are subject to AEDPA’s time limitations.1
1
The United
Mr. Dulaney’s reason for filing a second federal habeas
corpus petition appears to be his impatience with waiting for the
court to recharacterize his initial petition, Doc. # 208 in 6:08cv-00859, from a petition for coram nobis to a petition for
relief under 28 U.S.C. § 2255. Mr. Dulaney filed a motion for
recharacterization on October 23, 2008, which request this court
granted on July 28, 2009. Prior to this court’s Order, however,
Mr. Dulaney had already filed a new 28 U.S.C. § 2255 petition.
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States’ failure to raise the statute of limitations defense to
the second petition cannot be considered a waiver in light of its
prompt and detailed assertion of the AEDPA time bar against Mr.
Dulaney’s first, and identical petition.
Accordingly, the court
finds that the United States timely raised the AEDPA statute of
limitations issue and did not waive it, as Mr. Dulaney asserts.
Objection II
Mr. Dulaney next asserts that the AEDPA statute of
limitations should not apply to him because he was misled by
habeas corpus information forms he received in prison, which
suggested to him that he could only file for federal habeas
relief once he had begun serving his federal sentence.
Although
he no longer has the relevant form, Mr. Dulaney asserts that the
form stated something to the effect of “To use this form you must
be serving a federal sentence imposed against you by a Federal
Court.”
Objections (Doc. # 311), p.2.
Mr. Dulaney states that
since he was serving his state sentence first, he did not think
that he was eligible to file a federal habeas corpus petition at
the time AEDPA’s statute of limitations expired.
Mr. Dulaney
implies that had the forms not misled him, he would not have
waited until he began to serve his federal sentence, in federal
penitentiary, to file his petition.
Numerous courts have concluded that a prisoner serving
consecutive state and federal sentences meets the “in custody”
4
requirement when the prisoner is serving either the state or the
federal sentence.
Huffman v. United States, No. 2:10-cv-50, 2010
U.S. Dist. LEXIS 135923, at *4-6 (N.D.W. Va. Dec. 23, 2010)
(“common law holds that a prisoner serving consecutive sentences
under state and federal jurisdiction is in custody under a
sentence of a court established by Act of Congress, after being
sentenced in a federal court, regardless of which sentence he is
serving [...]
The Fourth Circuit has also extended this holding,
in dicta, to apply to 28 U.S.C. § 2255 cases.”); United States v.
Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) (“How, then, can he
challenge his § 924(c) "sentence" before he begins to serve it?
He can do so only because the Supreme Court has held that, for
jurisdictional purposes, consecutive sentences must be viewed in
the aggregate.”);
Simmons v. United States, 437 F.2d 156, 158
(5th Cir. 1971) (“We conclude, therefore, that a prisoner serving
consecutive sentences is "in custody" under any one of them for
the purposes of section 2255.”).
Under the law, therefore, Mr.
Dulaney was “in custody” for purposes of challenging his federal
sentence even while he was incarcerated in state prison.
Further, because confusion of law does not justify equitable
tolling, Mr. Dulaney’s mistake regarding his eligibility to file
for federal habeas corpus relief will not save his petition from
AEDPA’s statute of limitations.
See Waldron-Ramsey v. Pacholke,
556 F.3d 1008, 1013 n.4 (9th Cir. 2009) (confusion of law does
5
not warrant equitable tolling);
Wainwright v. Sec'y, Dep't of
Corr., 537 F.3d 1282, 1286 (11th Cir. 2007) (no equitable tolling
on the basis of legal confusion).
The fact that Mr. Dulaney misunderstood what the forms meant
does not entitle him to equitable tolling, a remedy which applies
only where (1) a prisoner can demonstrate that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way to prevent timely filing.
v. Florida, 130 S. Ct. 2549, 2563 (2010).
Holland
Under the Holland
standard, even if Mr. Dulaney might be able to show that he was
pursuing his rights diligently, he has failed to point the
court’s attention to any extraordinary circumstances which
completely foreclosed his filing.
Objection III
Mr. Dulaney’s third objection is that his petition is not
time-barred because some of the evidence he relies on in the
petition only became available within one year of the petition’s
filing.
Mr. Dulaney’s argument is unavailing because he fails to
make the necessary showing under the law.
Pursuant to AEDPA’s
statute of limitations, a petitioner may bring a claim within one
year of “the date on which the facts supporting the claim or
claims presented could have been discovered through the exercise
of due diligence.”
28 U.S.C. § 2255.
6
Mr. Dulaney is presumably
referring to this provision of AEDPA as the basis for his
objection.
Mr. Dulaney’s objection that his petition is timely
on this ground fails because Mr. Dulaney does not identify what
facts he came to acquire within one year of the filing of his
petition, or which of his four hundred and ninety one claims the
alleged recently discovered evidence affects.2
In the absence of
such information, the court has absolutely no way to determine
when those facts could have been discovered through the exercise
of due diligence, and whether Mr. Dulaney’s claims are therefore
still timely under AEDPA.
Such general and conclusory
allegations need not, and cannot, be credited.
“[T]his Court
need not conduct a de novo review when a party ‘makes general and
conclusory objections that do not direct the Court to a specific
error in the magistrate's proposed findings and
recommendations.’”
Ashworth v. Berkebile,
No. 5:09-cv-01106,
2010 U.S. Dist. LEXIS 138413, at *6-7 (S.D.W. Va. Dec. 27, 2010)
(citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)).
Objection IV
Mr. Dulaney next asserts that he is actually innocent of the
crime he was convicted of, and appears to suggest that his actual
2
The only "example" he offers is the F.B.I.'s admission that
at one point composite sketches of the bank robber existed, but
those sketches could not be found in their expected location upon
inspection. This, however, is not an example of evidence. At
best, it suggests that a piece of evidence may have existed at
one point in time.
7
innocence should operate as a bar to AEDPA’s statute of
limitations requirement.
While some Circuits have held that actual innocence can
operate as a bar to AEDPA’s one year filing limit, neither the
Fourth Circuit nor the United States Supreme Court has made this
determination.
Blakney v. United States, No. 4:11-cv-70024 2011
U.S. Dist. LEXIS 30963, at *15-16 (D.S.C. Mar. 24, 2011).
Even
assuming, for the sake of argument, that such a showing would
toll the statute of limitations, Mr. Dulaney has failed to
demonstrate under the applicable standard that he is actually
innocent.
To determine whether a petitioner has satisfied the
requirements for establishing a cognizable claim of actual
innocence to warrant equitable tolling, the court applies "the
same actual innocence standard developed in Schlup v. Delo, 513
U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), for reviewing
a federal habeas applicant's procedurally defaulted claim."
Greene v. Lafler, 2:09-cv-14597, 2011 U.S. Dist. LEXIS 26160, at
*11-12 (E.D. Mich. Mar. 15, 2011).
As one court has explained,
A valid claim of actual innocence requires a
petitioner "to support his allegations of
constitutional error with new reliable
evidence — whether it be exculpatory
scientific evidence, trustworthy eyewitness
account, or critical physical evidence - that
was not presented at trial." Schlup, 513 U.S.
at 324, 115 S. Ct. at 865. "The Schlup
standard is demanding and permits review only
in the 'extraordinary' case." House v. Bell,
8
547 U.S. 518, 538, 126 S. Ct. 2064, 2077, 165
L. Ed. 2d 1 (2006) (citation omitted). A
court presented with new evidence must
consider it in light of "all the evidence,
old and new, incriminating and exculpatory,
without regard to whether it would
necessarily be admitted under rules of
admissibility that would govern at trial."
Id. (citation omitted). "Based on this total
record, the court must make 'a probabilistic
determination about what reasonable, properly
instructed jurors would do.'" Id. (quoting
Schlup, 513 U.S. at 329). This standard does
not require absolute certainty about the
petitioner's guilt or innocence: A
petitioner's burden at the gateway stage is
to demonstrate that more likely than not, in
light of the new evidence, no reasonable
juror would find him guilty beyond a
reasonable doubt — or, to remove the double
negative, that more likely than not any
reasonable juror would have reasonable doubt.
House, 547 U.S. at 538, 126 S. Ct. at 2077.
Id.
As evidence of his actual innocence, Mr. Dulaney proffers
that two eyewitnesses whose testimonies were not presented at
trial identified the bank robber as being a clean-cut man, unlike
Mr. Dulaney, who had “scruffy, shaggy-looking hair” at the time.
Objections, p. 3.
Mr. Dulaney also argues that he knows of other
witnesses who identified the perpetrator as being shorter than
Mr. Dulaney, but whose testimonies were once again not presented
at trial.
Mr. Dulaney believes that had the jury heard these
eyewitnesses’ testimonies, they would have not convicted him of
the bank robbery.
In view of the rigorous showing necessary under Schlup to
9
establish actual innocence, the court finds that Mr. Dulaney has
fallen short of the required standard.
Mr. Dulaney’s proffer of
two eyewitnesses who describe the perpetrator’s hair as looking
different from his do not establish that more likely than not, in
light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt.
Credible evidence was
presented at trial linking Mr. Dulaney to the bank robbery,
including the testimony of Mr. Dulaney’s co-conspirator, James
Mace, who testified that he and Mr. Dulaney stole the car used in
the robbery.
Mr. Mace also testified that he and Mr. Dulaney
split the money they stole from the bank.
In addition, a latent
fingerprint from the stolen car matched Mr. Dulaney’s
fingerprint.
Viewed in light of all the evidence, Mr. Dulaney’s
proffer falls short of establishing that the outcome of his trial
would have been any different.
This is not the extraordinary
type of case envisioned by Schlup, and as such, the court finds
Mr. Dulaney’s argument for equitable tolling based on his actual
innocence unpersuasive.
Objection 5
Mr. Dulaney next asserts that he is entitled to equitable
tolling based on his attorney’s errors and misinformation during
the appeal of Mr. Dulaney’s case before the Fourth Circuit and
the United States Supreme Court.
Mr. Dulaney’s specific
grievances are: (a) that his counsel informed him that there were
10
no time limits associated with filing a federal habeas petition;
(b) that counsel did not inform Mr. Dulaney of the Fourth
Circuit’s denial of his direct appeal, even though he promised to
do so; (c) that counsel did not inform Mr. Dulaney that he filed
a petition for rehearing before the Fourth Circuit, and that the
petition was subsequently denied; and (d) that counsel had filed
a petition for writ of certiorari in the United States Supreme
Court and that the petition was denied.
In Holland v. Florida, the United States Supreme Court held
that a petitioner is “entitled to equitable tolling only if he
shows (a) that he has been pursuing his rights diligently, and
(b) that some extraordinary circumstance stood in his way and
prevented timely filing.”
2562 (2010).
Holland v. Florida, 130 S. Ct. 2549,
The Supreme Court explained that a court
considering whether to grant equitable tolling must be
“flexible,” avoid “mechanical rules,” and make its determination
on a case-by-case basis.
Id. at 2563.
Additionally, the Court
noted that whereas serious instances of attorney misconduct may
justify equitable tolling, “a garden variety claim of excusable
neglect” does not.
Id. at 2564.
Mr. Dulaney’s claims of attorney error here do not rise to
the level of justifying equitable tolling.
As an initial matter,
the court is unpersuaded that Mr. Dulaney was pursuing his rights
diligently.
As Mr. Dulaney himself admits, he mistakenly thought
11
that he had to be in federal prison before he could file a
federal habeas corpus petition.
See supra, pp. 4-6.
As Mr.
Dulaney only entered federal custody on August 21, 2008, it is
hard to see how he could have been pursuing his rights diligently
at the time that the deadline for his habeas petition filing
actually expired, approximately four years earlier.
Further, even if Mr. Dulaney had been pursuing his rights
diligently, nothing his attorney did actually prevented, or stood
in the way of Mr. Dulaney filing a federal habeas petition.
At
worst, Mr. Dulaney’s attorney misinformed him of when AEDPA’s
statute of limitations would expire as to his case.
However, in
view of his belief that he needed to be in federal prison before
filing a federal habeas petition, even this alleged deficiency in
his attorney’s performance cannot be said to have prejudice Mr.
Dulaney to an extent warranting relief under Holland.
The other alleged errors on the part of his attorney did not cut
short Mr. Dulaney’s time to file, or limit Mr. Dulaney’s ability
to petition the court for relief.
If anything, his attorney’s
numerous post-sentencing filings only served to extend the time
under AEDPA which Mr. Dulaney had to file a habeas petition.
As Mr. Dulaney’s claim only shows that his attorney was at
most neglectful in communicating with him, and informing him
about deadlines, the court concludes that Mr. Dulaney is not
entitled to equitable tolling under Holland.
12
Having reviewed the petitioner’s objections, the court
CONFIRMS and ADOPTS the Magistrate Judge’s PF&R, and DISMISSES
Mr. Dulaney’s two petitions.
III. Conclusion
Additionally, the court has considered whether to grant a
certificate of appealability.
See 28 U.S.C. § 2253(c).
A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
28 U.S.C. §
The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller- El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).
The court concludes that the governing
standard is not satisfied in this instance.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record, and the Petitioner, pro
se.
The Clerk is further directed to remove these cases from the
court’s active docket.
It is SO ORDERED this 23rd day of September, 2011.
ENTER:
David A. Faber
Senior United States District Judge
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