Johnson v. Clarke

• Decision Date: 17 March 2022
• Docket Number: 1:21cv918 (RDA/JFA)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Darren M. Johnson, Petitioner, v. Harold W. Clarke, Respondent.

Darren M. Johnson, Petitioner, v. Harold W. Clarke, Respondent.

No. 1:21cv918 (RDA/JFA)

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

March 17, 2022

MEMORANDUM OPINION

Rossie D. Alston, Jr., United States District Judge.

Darren M. Johnson ("Petitioner" or "Johnson"), a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his January 28, 2014 convictions in the Circuit Court for the City of Hampton, Virginia for first-degree murder, abduction, carjacking, and robbery. Commonwealth v. Johnson. Case Nos. CR12M00855-00 thru -03. On September 20, 2021, the Respondent filed a Rule 5 Answer and a Motion to Dismiss, with supporting briefs and exhibits. Petitioner has exercised his right to file responsive materials to the motion to dismiss pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K). [Dkt. Nos. 14, 15, 17]. 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. Background

The Circuit Court of the City of Hampton convicted Petitioner of first-degree murder, abduction, carjacking, and robbery during a two-day jury trial on January 27-28, 2014. The jury sentenced him to three life sentences plus twenty years in prison. The circuit court imposed the sentence fixed by the jury in its final order dated January 28, 2014.

Johnson appealed to the Court of Appeals of Virginia alleging the trial court had erred by admitting hearsay; not granting a motion to strike and reducing the robbery charge to larceny limiting his closing argument; not severing the robbery charge from the murder, abduction and carjacking charges; and denying his motion for a continuance. [Dkt. No. 9-1 at 1-11]. A judge of the Court of Appeals of Virginia's denied his petition for appeal on November 12, 2014. Johnson v. Commonwealth, Record No. 0240-14-1. [Dkt. No. 9-1]. The Supreme Court of Virginia refused his subsequent petition for appeal in a summary order dated August 21, 2015. Johnson v. Commonwealth. Record No. 150245 at 49.^[1]

On June 13, 2020, Johnson, proceeding pro se, filed a motion to vacate in the circuit court alleging the court still had subject matter jurisdiction, based on manifest injustice and the ends of justice, to consider if it had erred in admitting hearsay. Johnson v. Commonwealth. Case No. CL20-2428. [Dkt. No. 9-3]. The circuit court dismissed the motion to vacate on January 6, 2021 [Dkt. No. 9-4], finding the motion was untimely under Va. S.Ct. Rule 1:1 because Johnson had not established an exception to that rule, which states that the circuit court lost jurisdiction to disturb the judgment after the expiration of the 21-days after the judgment was entered. [Dkt. No. 9-4]. Johnson did not appeal the dismissal.^[2]

On December 3, 2020, Johnson mailed a state habeas petition to the Supreme Court of Virginia, which was filed on December 7, 2020. [Dkt. No. 9-5]. The state habeas petition asserted three claims:

I. The Commonwealth failed to establish that the murder occurred in Virginia and that the courts had jurisdiction, both territorial and subject matter. [Id. at 9].

II. The trial court allowed inadmissible evidence (hearsay from Rosilyn Young) at trial. [Id. at 12].

III. The trial court lost subject matter jurisdiction when it allowed hearsay evidence from Rosilyn Young. [Id. at 14].

The Supreme Court of Virginia dismissed the petition on March 16, 2021 as untimely because it had not been filed within one year from the final disposition of Johnson's direct appeal, August 15, 2015. (VSCT R. at 70) (citing Va. Code § 8.01-654(A)(2)).

On July 12, 2021, ^[3] Johnson filed his federal petition for a writ of habeas corpus in this Court and alleges three grounds for relief:

Ground One: During petitioner's trial the Commonwealth's Attorney failed to establish any proof or evidence that the alleged murder occurred within trial courts "territorial jurisdiction" or that the court had "subject matter jurisdiction, and not merely to venue" to try Petitioner, and thus such claim was not waived by failure to raise it pre-verdict. [Dkt. No. 1 at 17-21]'

Ground Two: The trial court erred in allowing inadmissible hearsay evidence to be presented by Commonwealth through its witness, Rosilyn Young, because Petitioner never took the stand. [Id at 21-23].

Ground Three: The trial court erred by not barring the admission of hearsay as evidence the court lost subject matter jurisdiction. [Id at 24-27].

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 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).

Johnson's direct appeal proceedings concluded on August 15, 2015, but are deemed final for federal habeas purposes on November 15, 2015 - 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.1 (4th Cir. 2000) (the one-year period does not commence until the latest of either 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)). While Johnson had until November 15, 2016 to file his federal habeas petition, he did not file his federal petition until July 12, 2021 - more than four years after his direct appeal was final for federal habeas purposes. The § 2254 petition is untimely unless the limitations period is tolled. The record establishes that Johnson is not entitled to statutory or equitable tolling.

A. Statutory Tolling

Johnson sent his state habeas petition to the Supreme Court of Virginia on December 3, 2020, which was after the federal one-year statute of limitations had already expired, and he is therefore not entitled to statutory tolling during the pendency of that state petition. See 28 U.S.C. § 2244(d)(2). In addition, the Supreme Court of Virginia determined that his state habeas petition was untimely under Virginia Code § 8.01-654(A)(2). (VSCT R. at 70). Accordingly, the state habeas proceedings did not toll the federal statute of limitations because the state habeas petition was not properly filed. See Pace, 544 U.S. at 417 (holding petitioner was not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) where state habeas petition was dismissed as untimely); Artuz v. Bennett 531 U.S. 4, 8 (2000) (holding a state collateral proceeding is not "properly filed" for purposes of tolling the federal limitations period if it is filed untimely).

The same is true of Johnson's motion to vacate, which was filed on June 13, 2020 and dismissed on January 6, 2021.^[4] Johnson v. Commonwealth. Case No. CL20-2428. [Dkt. No. 9-3].^[5]As with his state habeas petition, the motion to vacate did not toll the federal habeas one-year statute of limitations because it had already lapsed prior to the time Johnson filed his federal habeas petition. See Vroman v. Brigano. 346 F.3d 598, 602 (6th Cir. 2003) ("The tolling provision does not, however, 'revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations") (emphasis added); see also Trapp v. Spencer. 479 F.3d 53, 58-59 (1st Cir. 2007) (tolling "does not reset the clock on the limitations period ... but merely stops it temporarily, until the relevant applications for review are ruled upon"), abrogated on other grounds by Holmes v. Spencer. 822 F.3d 609 (1st Cir. 2016).

B. Equitable Tolling

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). The Fourth Circuit observed that equitable tolling 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." Harris. 209 F.3d at 330.

Johnson argues three points in support of his assertion that his claims should be heard on the merits.

First Johnson asserts that he acted diligently because he did not receive the DNA evidence he is relying upon in support of his argument for equitable tolling until December 29, 2021 [Dkt. No. 17 at 1]. As respondent established in his March 1, 2022 Supplemental Response, Johnson's trial counsel was aware of the fact that Dobbins's DNA had been found on the duct tape prior to Johnson's trial.^[6] His direct appeal ended in 2015, and he waited over five years to pursue these claims, which are all based upon matters that he was aware of in 2014, or were available to him...