Fawley v. Johnson
| Decision Date | 28 July 2011 |
| Docket Number | Civil Action No. 7:09-cv-0041 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | BENJAMIN WILLIAM FAWLEY, Plaintiff, v. GENE JOHNSON, et al., Defendants. |
By: Hon. Jackson L. Kiser
Benjamin William Fawley, a Virginia inmate housed in New Mexico and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 with jurisdiction vested in 28 U.S.C. § 1343. Plaintiff names as defendants Gene Johnson, former Director of the Virginia Department of Corrections ("VDOC"); R.C. Mathena, Warden of the Keen Mountain Correctional Center ("KMCC"); Larry Huffman, a VDOC Regional Director; D. Vass, a Treatment Program Supervisor; Ms. Rife, a Protective Custody Unit Counselor; and "Other Jane and John Doe Officials and Staff." The non-Doe defendants ("defendants") filed motions for summary judgment, and plaintiff responded, making the matter ripe for disposition. After reviewing the matter, I terminate Other Jane and John Doe Officials and Staff, pursuant to 28 U.S.C. § 1915A(b)(l), and grant the remaining defendants' motions for summary judgment.
Plaintiff instituted this action in February 2009 when he filed his Original Complaint, and the court received his Amended Complaint in March 2009. In June 2009, plaintiff sought leave to file a Second Amended Complaint. The court granted the request, giving plaintiff twenty days' leave to file the pleading and informed him that the Second Amended Complaint would replace his prior submissions. Plaintiff subsequently filed his Second Amended Complaint withexhibits, which were served on the defendants and is presently challenged by their motion for summary judgment.1 Plaintiff complains that prison officials failed to mail his state-court pleadings, VDOC and facility policies barred him reasonable access to courts to challenge his state-court criminal conviction, and correctional officers seized property that he considered legal materials and thus frustrated his access to courts. Plaintiff requests as relief damages and the reinstatement of his right to appeal his state criminal conviction from a Virginia circuit court to the Court of Appeals of Virginia.
Because plaintiff argues that the alleged denial of reasonable access to courts negatively impacted his challenges to his criminal conviction, a review of his criminal proceedings is necessary. The records of the instant case and relevant, related judicial proceedings reveal the following facts.2
On August 11, 2006, the Circuit Court of Mathews County entered plaintiff's criminal judgment following his Alford3 plea made pursuant to a written agreement. Plaintiff pleaded to murder in the second degree, in violation of Virginia Code § 18.2-32, as charged by an amended indictment.
On August 29, 2006, a non-attorney, to whom plaintiff granted a power of attorney, fileda "motion to suspend judgment" with the circuit court on plaintiff's behalf. This motion stated that plaintiff was moved to the custody of the VDOC on August 17, 2006.
Nearly a year and a half later on May 20, 2008, plaintiff filed a pro se petition for a belated appeal with the Supreme Court of Virginia. The Clerk of the Supreme Court of Virginia wrote plaintiff a letter in response, dated June 6, 2008, advising him that his petition fell outside the Court's jurisdiction and recommended he contact the Court of Appeals of Virginia, pursuant to Va. Code § 19.2-321.1.4 The Clerk noted, however, that deadline for filing the request with the Court of Appeals already expired.
On June 23, 2008, plaintiff allegedly filed a petition for appeal to the Court of Appeals of Virginia by depositing his pleadings in the KMCC mail system. This mailing is noted on the institution's outgoing mail log, but the Court of Appeals of Virginia acknowledged in a letter dated June 12, 2009, that its Clerk had no record of ever receiving any correspondence from plaintiff in 2008.
On July 5, 2008, plaintiff filed a petition for a writ of habeas corpus with the Supreme Court of Virginia, arguing that his plea was not voluntary and his counsel provided ineffective assistance. Plaintiff argued that trial counsel were ineffective because they did not note an appeal when plaintiff asked for one. Plaintiff then granted power of attorney to the non-attorney to file on his behalf with the circuit court a motion to suspend judgment after counsel refused to note an appeal. However, the Supreme Court of Virginia held that counsel did not provide ineffectiveassistance because he benefitted from a plea agreement waiving the right to appeal and petitioner did not objectively and timely demonstrate his intent to appeal. Fawley v. Director, No. 081341, slip op. at 2 (Va. Jan. 14, 2009). The Supreme Court of Virginia also rejected plaintiff's claim that his plea was not knowingly or voluntarily entered. Id. The Supreme Court of Virginia found plaintiff's challenge to the indictment waived because his knowing and voluntary guilty plea waived all non-jurisdictional defenses antecedent to the guilty plea. Id at 3. The Supreme Court of Virginia granted the Commonwealth's motion to dismiss on January 14, 2009, because plaintiff's claims lacked merit.
On August 11, 2008, plaintiff, by counsel, filed a second petition for a writ of habeas corpus with the circuit court.5 The circuit court dismissed the petition on December 4, 2008, as both time barred and as successive, pursuant to Virginia Code § 8.01-654(A)(2) and (B)(2). Fawley v. Commonwealth, No. CL08000069-00 (Cir. Ct. Mathews Co. Dec. 4, 2008). Plaintiff did not appeal the dismissal to the Supreme Court of Virginia.
On July 27, 2009, plaintiff filed his third petition for a writ of habeas corpus with the circuit court. The circuit court dismissed this petition on October 9, 2009, again as both time barred and successive. Fawley v. Va. Dep't of Corr., No. CL09000056-00 (Cir. Ct. Mathews Co. Oct. 9, 2009). Petitioner appealed to the Supreme Court of Virginia, which dismissed the appeal on March 18, 2010, and refused plaintiff's petition for rehearing on June 16, 2010. Fawley v. Johnson. No. 09-2631 (Va. Mar 18, 2010, & Jun. 16, 2010).
On August 31, 2009, plaintiff filed his federal petition for a writ of habeas corpus with the United States District Court for the Eastern District of Virginia. The District Court adopted a magistrate judge's recommendation for dismissal over plaintiff's objections because the federal statute of limitations expired. Fawley v. Johnson, No. 2:09-cv-00452 (E.D. Va. Jun. 16, 2010). The magistrate judge determined that plaintiff had until September 10, 2007, to file his federal habeas petition. The Court of Appeals for the Fourth Circuit denied plaintiff a Certificate of Appealability, dismissed his subsequent appeal, and denied his petition for a rehearing. Fawley v. Johnson, No. 10-6896 (4th Cir. Sept. 7, 2010, & Oct. 19, 2010).
Plaintiff was housed in segregation at the Powhatan Correctional Center ("PCC") from August 17, 2006, until October 19, 2006. From then until February 2009, plaintiff was an inmate at KMCC and assigned to protective custody and segregation, which are both considered forms of special housing. In March 2009, the VDOC transferred plaintiff from KMCC to a correctional facility in New Mexico, pursuant to Virginia's Interstate Corrections Compact. See Va. Code § 53.1-216.
Division Operating Procedure ("DOP") 822 ("Isolation, Segregation and Detention"), dated April 16, 1992, was effective when plaintiff arrived at PCC and KMCC.6 Per DOP 822 § 7.5 (7), inmates assigned either to isolation or to segregation would not be prohibited from litigating on their own behalf and would have access to institutional legal services as described by institutional operating procedures. These inmates would also be allowed unlimited attorneyvisits and permission for legal phone calls as described by institutional operating procedures. DOP 822 also provided that a warden or superintendent holds primary responsibility for "ensuring compliance with this operating procedure at the institutional level."
On December 1, 2006, DOP 822 was superseded by DOP 861.3 ("Special Housing").7 DOP 861.3 provides that offenders assigned to special housing will not be prohibited from litigating on their own behalf, should be afforded access to legal services including the facility attorney and the use of law library materials, and should be provided information on how to access legal services.
Plaintiff was assigned to segregation at PCC from August 17, 2006, until October 19, 2006. When Plaintiff arrived at PCC, Institutional Operating Procedure ("IOP") 867, dated November 15, 2005, was effective. This policy prevents special housing inmates from having physical access to the law library collections. Instead, a special housing inmate wanting legal materials sends a Law Library Material Request Form to the Operations Officer via institutional mail. The inmate can request up to five items at a time, which are checked out for three days at a time. An inmate law clerk collects the requested materials, delivers it to the Institutional Ombudsman, who delivers it to the housing unit correctional officer, who delivers it to the inmate. The inmate must sign for the materials before receipt.
This policy also permitted inmates to write to or to meet the institutional attorneys assigned by the local circuit court. The policy noted:
In cases where the institutional attorney(s) is/are not visiting frequently enough to handle the inmate needs in a reasonable time period, the inmate should notify the Operations Officer via [an] inmate request form. . . . The Operations Officer will contact the institutional attorney to advise of the inmate complaint and request assistance....
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