Eliaba v. Clarke

• Decision Date: 07 September 2016
• Docket Number: Civil Action No. 3:15CV376
• Court: U.S. District Court — Eastern District of Virginia
• Parties: DESMON ELIABA, Petitioner, v. HAROLD CLARKE, Respondent.

DESMON ELIABA, Petitioner, v. HAROLD CLARKE, Respondent.

Civil Action No. 3:15CV376

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

September 7, 2016

MEMORANDUM OPINION

Desmon Eliaba, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition," ECF No. 1) challenging his convictions in the Circuit Court for the County of Gloucester, Virginia ("Circuit Court"). Respondent moves to dismiss on the ground that, inter alia, the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. Eliaba has responded. (ECF No. 18.) For the reasons set forth below, the Motion to Dismiss (ECF No. 12) will be GRANTED.

I. PERTINENT PROCEDURAL HISTORY

On November 14, 2011, Eliaba was found guilty of three counts of breaking and entering a residence to commit grand larceny, and three counts of grand larceny, and was sentenced to an active sentence of twelve years. Commonwealth v. Eliaba, Nos. CR11000216-00, CR11000217-00, CR11000220-00 through CR11000222-00, at 1-2 (Va. Cir. Ct. Mar. 9, 2012); Commonwealth v. Eliaba, No. CR11000223-00, at 1 (Va. Cir. Ct. Mar. 20, 2012). On March 9 and 20, 2012, the Circuit Court entered final judgment. Eliaba, Nos. CR11000216-00, CR11000217-00, CR11000220-00 through CR11000222-00, at 3; Eliaba, No. CR11000223-00, at 3. Eliaba appealed. On March 20, 2013, the Supreme Court of Virginia refused Eliaba's petition for appeal. Eliaba v. Commonwealth, No. 121845, at 1 (Va. Mar. 20, 2013).

On March 28, 2014,¹ Eliaba filed a petition for a writ of habeas corpus with the Circuit Court. See Eliaba v. Clarke, No. CL14-118, at 2 (Va. Cir. Ct. May 20, 2014). In it, Eliaba raised the following claims for relief:

A. The trial court committed plain error when conducting the joinder of offenses involving petitioner and co-defendant where there was no prior motion submitted by the Commonwealth.

B. Defense counsel was ineffective for failing to request separate trials for petitioner and co-defendant.

C. The evidence adduced at trial was insufficient as a matter of law and fact to convict petitioner of the charged offenses.

See id. at 2 (capitalization corrected). On May 20, 2014, the Circuit Court dismissed Eliaba's petition. Id. at 5. Specifically, the Circuit Court found that Eliaba's petition was "time-barred under Virginia Code § 8.01-654(A)(2)." Id. at 2. Eliaba did not appeal the Circuit Court'sdecision to the Supreme Court of Virginia. (See § 2254 Pet. 5; Br. Supp. Mot. Dismiss 2, ECF No. 14.)

On or about June 14, 2015, Eliaba filed his § 2254 Petition in this Court.² (§ 2254 Pet. 15.) In his § 2254 Petition, Eliaba asserts the following claims for relief:

Claim One "The Circuit Court erred when determining the habeas petition was untimely. The petition was placed in the prison internal mailing system prior to the deadline by which to file." (§ 2254 Pet. 6.)³

Claim Two "The state courts committed error when refusing to hear Petitioner's appeal of trial court denial of habeas relief. Petitioner did not receive order of Circuit Court dismissal until after filing motion for disposition of case and notice of intended writ of mandamus." (Id. at 7.)

Claim Three "The trial court committed plain error when conducting the joinder of offenses involving Petitioner and co-defendant where there was no prior motion submitted by the Commonwealth." (Id. at 9.)

Claim Four "Defense counsel was ineffective for failing to request separate trials for Petitioner and co-defendant." (Id. at 10.)

Claim Five "The evidence adduced at trial was insufficient as a matter of law and fact to convict Petitioner of the charged offenses." (Id. at 12.)

Eliaba's first two claims do not provide any basis for federal habeas relief. "[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief." Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (citing cases). This is so because Eliaba is detained as a result of the underlying state conviction, not the state collateral proceeding. See Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008). Accordingly, Claims One and Two will be DISMISSED.

II. ANALYSIS

A. Statute of Limitations

Respondent contends that the federal statute of limitations bars Eliaba's claims. Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2244 to establish a one-year period of limitation for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. Specifically, 28 U.S.C. § 2244(d) now reads:

1. A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(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.

2. The time during which a properly filed application for State postconviction 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).

B. Commencement and Running of the Statute of Limitations

The Supreme Court of Virginia refused Eliaba's petition for appeal on March 20, 2013. Eliaba's convictions became final on Tuesday, June 18, 2013, when the time to file a petition for a writ of certiorari expired. See Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) ("[T]he one-year limitation period begins running when direct review of the state conviction is completed or when the time for seeking direct review has expired . . . ." (citing 28 U.S.C. § 2244(d)(1)(A))); Sup. Ct. R. 13(1) (requiring that a petition for certiorari should be filed within ninety days of entry of judgment by the state court of last resort or of the order denying discretionary review). The limitation period began to run on June 19, 2013, and 282 days of the limitation period elapsed before Eliaba filed his state petition for a writ of habeas corpus on March 28, 2014.

C. No Entitlement to Statutory Tolling

To qualify for statutory tolling, an action must be a (1) properly filed (2) post-conviction or other collateral review of (3) the pertinent judgment. 28 U.S.C. § 2244(d)(2). "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). These rules and laws "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." Id. (footnote omitted) (citations omitted).

The Circuit Court dismissed Eliaba's state habeas petition as untimely filed. Eliaba v. Clarke, No. CL14-118, at 2 (Va. Cir. Ct. May 20, 2014). A petition that is denied by a state court as untimely is not "properly filed" within the meaning of the AEDPA. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (citation omitted) ("When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)."). Because Eliaba's state habeas petition was not properly filed, Eliaba lacks entitlement to statutory tolling for the period during which he pursued his untimely state habeas petition in the Circuit Court.

Accordingly, the limitation period began to run on June 19, 2013, and Eliaba had until June 19, 2014 to file his § 2254 Petition. Eliaba failed to file his federal habeas petition until June 14, 2015, nearly a year after the limitation period expired. Therefore, the action is barred by the statute of limitations unless Eliaba demonstrates entitlement to a belated commencement of the limitation period under 28 U.S.C § 2244(d)(1)(B)-(D) or some equitable exception to the limitation period. Eliaba argues entitlement to belated commencement of the limitation period under 28 U.S.C. § 2244(d)(1)(B) or equitable tolling.⁴

D. State-Created Impediment in Violation of the Constitution

A claim for belated commencement due to State action "must satisfy a far higher bar than that for equitable tolling." Saunders v. Clarke, No. 3:11CV170, 2012 WL 689270, at *7 (E.D. Va. Mar. 2, 2012) (quoting Leyva v. Yates, No. CV 07-8116-PA, 2010 WL 2384933, at *3 (C.D. Cal. May 7, 2010)). To delay the running of the statute of limitations, § 2244(d)(1)(B) requires: (1) state action that both (2) violated the Constitution or laws of the United States and (3) prevented the prisoner from filing a habeas petition. Ocon-Parada v. Young, No. 3:09cv87, 2010 WL 2928590, at *2 (E.D. Va. July 23, 2010) (citing Johnson v. Fla. Dep't of Corr., 513 F.3d 1328, 1331-32 (11th Cir. 2008)). "[A] state-created impediment must, to animate the limitations-extending exception [of § 2244(d)(1)(B)], 'prevent' a prisoner from filing for federal habeas relief." Wood v. Spencer, 487 F.3d 1, 7 (1st Cir. 2007). A court "should grant relief only where a petitioner is 'altogether prevented . . . from presenting his claims in any form, to any court.'" Saunders, 2012 WL 689270, at *7 (quoting Ramirez v. Yates, 571 F.3d 993, 1001 (9th Cir. 2009)). Thus, a prisoner "must explain with specificity how any alleged deficienciesactually hindered their efforts to pursue...