Glay v. Clarke
| Decision Date | 24 April 2020 |
| Docket Number | CIVIL ACTION NO. 2:19cv305 |
| Parties | JUNIOR GLAY, Petitioner, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent |
| Court | U.S. District Court — Eastern District of Virginia |
This matter is before the Court on Petitioner Junior Glay's ("Petitioner") pro se Petition for a Writ of Habeas Corpus ("the Petition") filed pursuant to 28 U.S.C. § 2254, ECF No. 1, and Respondent Harold W. Clarke's ("Respondent") Motion to Dismiss, ECF No. 12. The matter was referred for a recommended disposition to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. The undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that Respondent's Motion to Dismiss, ECF No. 12, be GRANTED, and the Petition, ECF No. 1 be DENIED and DISMISSED WITH PREJUDICE.
On January 14, 2002, before the Circuit Court of Arlington County ("Trial Court"), Petitioner entered Alford1 pleas related to his convictions of entering a banking house while armed, robbery, and felony failure to appear. ECF No. 14, attach. 1 at 1, 3, 5. The Trial Court sentenced Petitioner to twenty years of imprisonment with seventeen years suspended for the armed entry of a banking house, five years of imprisonment with two years suspended for robbery, and one year of imprisonment for failure to appear. Id., attach. 4 at 1-2. Petitioner was also placed on probation for ten years after his release for armed entry of a banking house and five years after his release for robbery. Id.
Petitioner did not file a direct appeal of his criminal conviction. Id. at 2. In September 2008, Petitioner filed a petition for a writ of error coram nobis in the Trial Court in September 2008, alleging ineffective assistance of counsel. Id. at 3-4. The Trial Court dismissed the petition for writ of error coram nobis on April 29, 2009, and Petitioner did not appeal that decision to the Supreme Court of Virginia. Id.
In February of 2010, Petitioner was sentenced to 84 months in federal prison for "counts of bank and wire fraud", which were unrelated to the 2002 charges underlying the instant petition and Petitioner's 2008 petition for a writ of error coram nobis. See Id. at 7 n.4. Upon his release from federal prison, Petitioner was brought before the Trial Court for violating the terms of his probation. Id. at 2. On August 22, 2014, the Trial Court held a probation revocation hearing and entered a final order on September 10, 2014. Id. For the armed entry of a banking house, the Trial Court ordered Petitioner to complete his previously suspended sentence and resuspended all butten years. Id. For the robbery conviction, the Trial Court imposed the remainder of his previously suspended sentence but allowed Petitioner to serve the sentences concurrently. Id.
On October 24, 2014, Petitioner filed a petition for a writ of habeas corpus in the Trial Court. Id. The Trial Court interpreted the state habeas Petition as raising the following claims: (1) "[h]is Alford plea was 'void and invalid, not intelligently render[ed]'" and (2) "[h]is trial counsel was ineffective for misadvising him of the immigration consequences of his guilty plea." Id.
On February 7, 2018, the Trial Court dismissed the state habeas petition. Id. at 8-9. First, the Trial Court held that the petition was time-barred under Virginia Code § 8.01-654(A)(2). Id. Next, the Trial Court found that "Petitioner's claim that his guilty plea was void because it was not 'intelligently render[ed]' [wa]s procedurally defaulted because he could have raised this claim in the trial court or on appeal." Id. at 5. Finally, the Trial Court held that at the time of Petitioner's pleas, Petitioner's counsel was under no obligation to inform Petitioner of the impact of his conviction on his immigration status. Id. at 6. The Trial Court explained that the United States Supreme Court required counsel to inform criminal defendants of the risk of deportation in Padilla v. Kentucky, 559 U.S. 356, 367 (2010). Id. at 6. However, Padilla was decided eight years after Petitioner's conviction and has not been made retroactive. Id. Finally, the Trial Court noted that Petitioner did not demonstrate that he was subject to removal based on the challenged convictions alone. Id. at 6. Because Petitioner was convicted of federal crimes after the challenged convictions, Petitioner could not meet his burden of showing he was subject to removal as a result of his Alford pleas (which was the subject of his ineffective assistance of counsel claim). Thus, the Trial Court denied and dismissed Petitioner's writ of habeas corpus. Id. at 8.
On October 16, 2018, the Supreme Court of Virginia refused the Petitioner's petition for appeal, holding that there was no reversible error in the judgment. Id. attach. 5 at 1.
On June 2, 2019, Petition filed the instant pro se § 2254 Petition for federal habeas relief, raising the same claims in his state habeas petition. See ECF No. 1 at 15-25. On November 7, 2019, Respondent filed a Motion to Dismiss, a Rule 5 Answer, a Brief in Support of the Motion to Dismiss, and Roseboro Notice. ECF Nos. 11-14. Petitioner filed a response to the Motion to Dismiss. ECF No. 15. Therefore, the instant Petition and Motion to Dismiss are ripe for recommended disposition.
Before considering the merits of a federal habeas petition, the preliminary inquiry must be whether Petitioner's federal habeas petition was timely or may be excused for untimely filing under the Anti-terrorism and Effective Death Penalty Act ("AEDPA") and whether Petitioner's claims are procedurally defaulted or can overcome procedural default because of a fundamental miscarriage of justice.
"On April 24, 1996, a one-year limitation for filing of federal habeas corpus petitions was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ('the AEDPA')." Gilmore v. Ballard, No. 2:09-CV-00041, 2009 WL 6319261, at *1 (S.D.W. Va. Oct. 22, 2009), report and recommendation adopted in part, No. CIV. A. 2:09-00041, 2010 WL 1286891 (S.D.W. Va. Mar. 26, 2010). As Respondent notes, this case is governed by the limitation period set forth in the AEDPA. ECF No. 14 at 4. The applicable section of the AEDPA provides, in pertinent part, that:
28 U.S.C. § 2244(d)(1). Section 2244(d)(2) of the AEDPA further provides 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). Therefore, Section 2254 petitions such as the instant Petition are subject to a one-year statute of limitations and must be dismissed if they are filed later than one year after the expiration of the time to seek direct review of the highest state court's decision by the Supreme Court of the United States. See 28 U.S.C. § 2244(d)(1)(A).
In the instant matter, the Trial Court entered final orders on January 24, 2002 and January 31, 2002. ECF No. 14, attach. 4 at 1. Petitioner had thirty days to appeal his criminal conviction. Va. Code Ann. § 8.01-675.3 (2019). Since the Petitioner did not direct appeal his criminal conviction, the judgment became final on March 4, 2002.2 ECF No. 14 at 5. Applying the one-year AEDPA deadline, Petitioner's statute of limitations for filing a petition for federal habeas corpus relief under 28 U.S.C. § 2244(d)(1)(A) expired on March 4, 2003. The instant Petition wasfiled June 2, 2019,3 which is 6300 days (or 17 years, 2 months, and 29 days) after the time for filing a federal habeas petition began to run on March 4, 2002, and consequently, 5934 days (or 16 years, 2 months, and 29 days) beyond the 365-day (one-year) deadline provided by the AEDPA.4
A petitioner may be entitled to belated commencement of the statute of limitations under 28 U.S.C. § 2244(d)(1)(D), which allows a petitioner to file a writ of habeas corpus within one year of "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Petitioner argues that the factual predicate underlying this claim occurred on January 14, 2008, when he was arrested by Immigration and Customs Enforcement ("ICE") officials. ECF No. 1 at 21 ().
Even if the Court accepts Petitioner's argument that the factual predicate of the...
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