Hoover v. Clarke

• Decision Date: 31 January 2022
• Docket Number: 1:20cv1107(LO/IDD)
• Parties: Malik Raheem Hoover, Petitioner, v. Harold W. Clarke, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

Malik Raheem Hoover, Petitioner,
v.
Harold W. Clarke, Respondent.

No. 1:20cv1107(LO/IDD)

United States District Court, E.D. Virginia, Alexandria Division

January 31, 2022

MEMORANDUM OPINION

Liam O'Grady United States District Judge

Malik Raheem Hoover ("Petitioner" or "Hoover"), a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his January 9, 2015 convictions in the Circuit Court for the City of Hampton, Virginia, for robbery, two counts of abduction, breaking and entering while armed with a deadly weapon, and sexual battery. Commonwealth v. Hoover, Case Nos. CR1300089-00 thru -03, -05. On May 24, 2021, Respondent filed a Rule 5 Answer and a Motion to Dismiss, with supporting briefs and exhibits. Petitioner was advised of his right to file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K) to the motion to dismiss, but he has not filed a response. Accordingly, this matter is now ripe for disposition. For the reasons that follow, the respondent's Motion to Dismiss must be granted and the petition will be dismissed with prejudice.

I. Procedural History

By final order dated January 9, 2015, the Circuit Court of the City of Hampton convicted Petitioner of robbery in violation of Virginia Code § 18.2-58, two counts of abduction in violation of Virginia Code § 18.2-48, breaking and entering while armed with a deadly weapon in violation of Virginia Code § 18.2-90, and sexual battery in violation of Virginia Code § 18.2-

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67.4.^[1] The circuit court sentenced Hoover to a total of 74 years in prison, with 55 years of the sentence suspended, and 12 months in jail. Hoover filed a petition for appeal in the Court of Appeals of Virginia, in which he raised two claims:

(a) that the trial court erred by "forcing" Hoover "to undergo trial without an attorney"; and

(b) that the evidence was insufficient to prove that petitioner committed the offenses because "there were no fingerprints or DNA linking Hoover to the crime scene" and "the purported identification of Hoover as an intruder was unreliable."

Hoover v. Commonwealth, Record No. 0069-15-1, (CAV R. at 38, 52, 79, 81). The petition was denied by order dated September 9, 2015, and the denial order was affirmed by a three-judge panel on November 9, 2015. Hoover raised only one assertion of error (he was forced to undergo trial without an attorney) in his petition for appeal to the Supreme Court of Virginia, which refused his subsequent petition on July 7, 2016. Hoover v. Commonwealth, Record No. 151741. (VSCTR.at20-21, 55).

The federal petition does not indicate that Hoover filed a state habeas petition in either the circuit court or the Supreme Court of Virginia, but it does indicate that he filed a motion in the circuit court after his direct appeal was final. A review of the circuit court record indicates that petitioner filed two motions on January 3, 2019 - a motion for biological testing and a request for appointment of counsel. Counsel was appointed on February 12, 2019, but petitioner subsequently retained counsel, who noted his appearance on March 25, 2019. The circuit court dismissed the motion for biological testing on May 27, 2019. Petitioner also filed a motion to vacate in the circuit court, which was denied on November 30, 2018. Petitioner did not appeal the dismissal.

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This Court's records also establish that petitioner, proceeding pro se, filed a motion on September 28, 2018 (dated September 18, 2018) in this Court seeking appointment of a lawyer to assist him in filing a federal habeas petition. On October 3, 2018, the Court denied the motion and dismissed the civil action without prejudice because the Court lacked jurisdiction. The Court also directed the Clerk to provide Hoover with a § 2254 form, which accompanied the dismissal order. Malik Hoover v. Commonwealth of Virginia, No. I:18cvl240 (E.D. Va. Oct. 3, 2018).

On August 25, 2020, ^[2] Petitioner filed the instant petition for a writ of habeas corpus in the United States District Court for the Western District of Virginia, which transferred the case to this Court on September 22, 2020. Hoover v. Clarke, No. 7:20cv00525 (W.D. Va.). The § 2254 petition alleges the following grounds for federal habeas corpus relief:

1. The trial court erred by forcing Hoover to undergo trial without an attorney

2. The evidence was insufficient to convict Hoover and there was reasonable doubt that he committed the offenses

II. Statute of Limitations

A petition for a writ of habeas corpus must be dismissed if filed later than one year after (1) the judgment becomes final; (2) any state-created impediment to filing a petition is removed; (3) the United States Supreme Court recognizes the constitutional right asserted; or (4) the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D). In calculating the one-year period, however, the Court must exclude the time during which properly filed state collateral proceedings pursued by petitioner were pending. See 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (determining that

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the definition of "properly filed" state collateral proceedings, as required by § 2244(d)(2), is based on the applicable state law as interpreted by state courts).

Petitioner's state court direct appeal proceedings concluded on July 7, 2016, but are deemed final for federal habeas purposes on October 5, 2016, which is the date his time for seeking a petition for a writ of certiorari to the Supreme Court of the United States expired. See Harris v. Hutchinson, 209 F.3d 325, 328 n.l (4th Cir. 2000) (AEDPA provides that the one-year period does not commence until the latest of the date when judgment on direct review "became final" or "the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A)). Petitioner therefore had until October 5, 2017, to file his federal habeas petition. Petitioner, however, did not file his federal petition until August 25, 2020 - over three years and ten months after his direct appeal was final for federal habeas purposes. Even if tolled for the motion to vacate, the federal petition was filed over seven months after the federal statute of limitations expired.^[3] The § 2254 petition is untimely, therefore, unless the limitations period is tolled. The record establishes that Petitioner is not entitled to statutory or equitable tolling.

A. Statutory Tolling

Petitioner did not timely file his federal petition prior to the expiration of the one-year period set forth in AEDPA and is therefore not entitled to statutory tolling during the pendency of that petition. See 28 U.S.C. § 2244(d)(2).

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B. Equitable Tolling

The United States Supreme Court has held that a habeas petitioner may be permitted to file a federal habeas petition out of time if he can establish his entitlement to equitable tolling, which requires that the petitioner show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010) (citation omitted). A petitioner asserting equitable tolling "bears a strong burden to show specific facts" that demonstrate fulfillment of both elements of the test, Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 12304, 1307 (11th Cir. 2008)), and generally is obliged to specify the steps he took in diligently pursuing his federal claim. Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001). In addition, the petitioner must "demonstrate a causal relationship between the extraordinary circumstance on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the circumstances." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). It is widely recognized that equitable tolling is to be applied only infrequently. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (resort to equity is "reserved for those rare instances where - due to circumstances external to the party's own conduct - it would be unconscionable to enforce the limitation period against the party and gross injustice would result.").

Hoover's assertion of mental health issues, alone, amounts to little more than a "bare assertion" that he "suffer[ed] from some mental impairment, [which] 'without more, is insufficient to justify equitable tolling.'" Robinson v. Hinkle, 610 F.Supp.2d 533, 539 (E.D. Va. 2009), appeal dismissed, 357 Fed.Appx. 517 (4th Cir. 2009)) (quoting Lawrence v. Florida, 421 F.3d 1221, 1227(11th Cir. 2005)):

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see also Long v. Deep Meadow Corr. Or, , No. 3:18cv049, 2018 U.S. Dist. LEXIS 119036 *8 (E.D. Va. July 16, 2018) (finding "bare allegations that [petitioner] suffers from PTSD, depression, and anxiety do not demonstrate a causal connection to his inability to file on time"). "Rather, a causal link between the mental condition and untimely filing is required." Ata v. Scutt, 662 F.3d 736, 741-42 (6th Cir. 2011) (collecting cases). Moreover, "[a] petitioner's ability to make other legal filings during the alleged period of his incompetency counsels strongly against allowing equitable tolling of a petitioner's federal habeas petition." Robinson, 610 F.Supp.2d at 540; see also Price v. Lewis, 119 Fed.Appx. 725, 726-27 (6th Cir. 2005) (holding that a petitioner able to file legal papers during period of alleged incapacity not entitled to equitable tolling). "A claim of continuing psychiatric care is insufficient to trigger equitable tolling." Robinson, 610 F.Supp.2d at 542 (citations omitted).

In his § 2254 petition, Petitioner alleges that mental...