Cox v. Angelone
| Citation | 997 F.Supp. 740 |
| Decision Date | 11 March 1998 |
| Docket Number | Civil Action No. 3:97CV925. |
| Parties | Daniel T. COX, Petitioner, v. Ron ANGELONE, Director, Virginia Department of Corrections, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Maureen L. White, Grennan, Tondrowski, White & Wicker, Richmond, VA, for Petitioner.
Mary Kathleen Beatty Martin, Office of the Attorney General, Richmond, VA, for Respondent.
This matter is before the Court on Respondent's motion to dismiss the petition for a writ of habeas corpus. For the reasons set forth below, the Court GRANTS the motion. Respondent has moved to dismiss on the following grounds: the petition is barred by the one year statute of limitations governing federal habeas petitions; all of Petitioner's claims are either defaulted or lack merit. Cox has responded. Jurisdiction is appropriate pursuant to 28 U.S.C. § 2254. For the reasons which follow, Petitioner's motion will be DENIED.
After a jury trial, Daniel Thomas Cox was convicted of the first degree murder of his wife, Jenny and use of a firearm in commission of murder. He was sentenced to a total of fifty-two (52) years in prison pursuant to a final judgment of the Circuit Court of Hanover County entered on October 18, 1993.
On January 5, 1996, Cox filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. In the state petition, Alvarado raised the following claims for relief:
I(A-M). Petitioner was denied reasonably
effective assistance of
counsel before trial, at trial, at
sentencing and on direct appeal
(¶¶ 31-97)
II(A-D). The prosecutor engaged in
substantial misconduct during
the trial (¶¶ 98-117)
III. The trial court erred in admitting
inculpatory portions of the
petitioner's remarks to officers
at the scene while excluding
exculpatory portions (¶¶ 118-120)
IV. The trial court erred in admitting
the alleged prior bad acts
of the petitioner (¶¶ 121-123)
V. The trial court erred in admitting
evidence regarding the
petitioner's invocation of his
Fifth Amendment right not to
make a statement (¶¶ 124-125)
VI. The trial court erred in allowing
the prosecutor to engage
in improper argument during
closing (¶¶ 126-129);
VII. The jury had an improper basis
for reaching their verdict
(¶¶ 130-131);
VIII. Petitioner restates and incorporates
by reference all claims
made by Petitioner in post-trial
motions and direct appeal in
order to preserve those claims
for possible later federal review
(¶ 132); and
IX. Substantive innocence (¶¶ 133-134).
State Petition for a Writ of Habeas Corpus at ¶¶ 31-134. The petition was dismissed on August 8, 1997. In dismissing the petition, the Virginia Supreme Court applied the holding in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to Petitioner's allegations in I(A) through (M); the rule in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975) (), to petitioner's allegations II (except ¶ 108(f)), III, V (except ¶¶ 124(d), (e), and (f)), VI (except ¶ 128(f)), and VII; the rule in Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970) (), to Petitioner's allegations found in paragraphs 108(f); 124(d), (e), and (f); and 128(f) of the petition for writ of habeas corpus. The Virginia Supreme Court further stated that it found no merit in the allegations contained in Petitioner's response to the motion to dismiss.
The present petition for a writ of habeas corpus was filed on December 10, 1997. The claims raised in Cox's federal petition are virtually identical to those raised in his state petition.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective on April 24, 1996, amended 28 U.S.C. § 2244 by imposing a one-year statute of limitations for the filing of a habeas corpus petition seeking relief from a state court conviction. The limitation period, with certain exceptions, begins to run from "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). Furthermore, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). The AEDPA does not expressly provide an exception for cases in which the judgment of conviction became final before April 24, 1996, the effective date of the AEDPA.
Although the Fourth Circuit has not yet addressed this issue, many courts of appeals have concluded that application of the one year limitation period to petitioners whose convictions became final before the enactment of the AEDPA without first affording them a reasonable time to bring their claims would be "impermissibly retroactive," United States v. Simmonds, 111 F.3d 737, 745 (10th Cir.1997), cert. denied, 502 U.S. 840, 112 S.Ct. 129, 116 L.Ed.2d 97 (1991) (); Reyes v. Keane, 90 F.3d 676, 679 (2nd Cir.1996), overruled by Lindh v. Murphy, ___ U.S. ___, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and many of those courts have further concluded that one year from the date of enactment constitutes a "reasonable time" in which a habeas petitioner should be expected to file his habeas petition. See e.g. Simmonds, 111 F.3d at 745-46; Calderon v. United States Dist. Court, 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); Moore v. Johnson, 101 F.3d 1069 (5th Cir.1996); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), rev'd on other grounds, ___ U.S. ___, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also United States v. Lopez, 100 F.3d 113, 116-17 (10th Cir.1996) ().
The Court agrees that the Constitution requires that petitioners whose convictions became effective before the enactment of the AEDPA be given a reasonable time to file federal habeas petitions and concludes that one year from the enactment of the AEDPA provides such a reasonable time frame. See Lindh, 96 F.3d at 866 (); Martin v. Jones, 969 F.Supp. 1058, 1061 (M.D.Tenn. 1997) (). Furthermore, the Court concludes that fundamental fairness also requires tolling the statute of limitations for those petitioners such that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). See Valentine v. Senkowski, 966 F.Supp. 239 (S.D.N.Y.1997) ().
Cox was convicted on October 18, 1993 in the Circuit Court for the County of Hanover of the murder of his wife, Jenny Cox, and use of a firearm during the commission thereof. He was sentenced to a total term of 52 years. Cox petitioned the Court of Appeals of Virginia to grant an appeal on questions regarding the sufficiency of the evidence, the admission of prior bad acts alleged to have been committed by the Petitioner and impropriety of the prosecutor's comments during closing arguments on the Petitioner's post-Miranda silence. An appeal was granted only on the issue of the admission of the prior bad acts. On May 9, 1995 the Court issued an unpublished opinion affirming the conviction, with the Honorable James Benton dissenting. Allowing ninety days for the filing of a petition for certiorari to the United States Supreme Court, Spencer's convictions became final on August 7, 1995. Cox filed a petition for a writ of habeas corpus in the Virginia Supreme Court on March 3, 1997, raising the same claims he has made in his petition to this Court. The state habeas court dismissed Cox's petition on August 8, 1997 and denied his request for rehearing on October 31, 1997. Cox filed his federal petition for a writ of habeas corpus in this Court on December 10, 1997. Applying the methodology of calculating the statute of limitations set forth above, Cox had a one-year grace period in which to file his federal habeas petition, which gave him until April 24, 1997. Excluding the period from March 3 to October 31, 1997 during which his state habeas petition was pending, Cox has filed his federal petition within that one-year grace period.
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