Patterson v. Director, Va. Dept. of Corrections

• Decision Date: 04 February 1999
• Docket Number: No. Civ.A. 98-545-AM.,Civ.A. 98-545-AM.
• Parties: Alvin J. PATTERSON, Petitioner, v. DIRECTOR, VIRGINIA DEPT. OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

36 F.Supp.2d 317

Alvin J. PATTERSON, Petitioner, v. DIRECTOR, VIRGINIA DEPT. OF CORRECTIONS, Respondent.

No. Civ.A. 98-545-AM.

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

February 4, 1999.

Eugene Murphy, Assistant Attorney General, Commonwealth of Virginia, Office of the Attorney General, Richmond, Virginia, for plaintiff.

Alvin J. Patterson, petitioner pro se.

MEMORANDUM OPINION

ELLIS, District Judge.

Petitioner, a Virginia inmate proceeding pro se, filed this federal habeas petition after the denial of three successive state habeas petitions and more than one year after his judgment of conviction became final. These facts present the question whether the prior state petitions were "properly filed" under 28 U.S.C. § 2244(d), so as to toll the one-year limitations period and hence save this petition from being time-barred. Also presented is whether this petition is procedurally barred given the threshold dismissal of the earlier state petitions as procedurally barred.

For the reasons set forth here, the state petitions were "properly filed," serving, as a result, to toll the limitations period and save the instant petition from the one-year bar. But while the state petitions may rescue the instant petition from the limitations bar, they also create a procedural bar requiring dismissal of this petition.

I.

On January 25, 1996, petitioner was convicted in the Circuit Court for York County of (i) shooting from a motor vehicle, (ii) shooting at an occupied vehicle, and (iii) attempted maiming. As a result, he was sentenced to a total of 15 years in prison. A timely direct appeal was taken to the Virginia Court of Appeals. In this appeal, petitioner contended that the trial court committed reversible error by excluding two letters addressed to petitioner from an eyewitness to the shooting that petitioner claimed would have aided in impeaching that eyewitness. The Court of Appeals found no reversible error and affirmed the convictions. Patterson v. Commonwealth, 1996 WL 679935, Record No. 2733-95-1 (Va.Ct.App. Nov. 26, 1996) (unpublished). No appeal was taken to the Supreme Court of Virginia. Thus, petitioner's judgment of conviction became final on December 26, 1996.

Petitioner filed his first state petition for a writ of habeas corpus in the Supreme Court of Virginia on March 14, 1997. His sole claim concerned denial of his right to a speedy trial. See Virginia Code § 19.2-243 (person accused of felony must be brought to trial within five months of General District Court's finding of probable cause). On April 30, 1997, the Supreme Court of Virginia dismissed the petition, ruling that petitioner's claim was procedurally barred under Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (Va. 1974) (barring non-jurisdictional state habeas claims not raised at trial or on appeal), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). Patterson v. Director, Dept. of Corrections, Record No. 970484 (Va. April 30, 1998) (unpublished).

Petitioner filed a second habeas petition with the Supreme Court of Virginia on October 27, 1997, and a third on December 2, 1997. The second petition alleged ineffective assistance of counsel on grounds that counsel failed to object to the admissibility of identification testimony, failed to object to a jury instruction regarding a firearm charge that was later dismissed by the court, and failed to raise either issue on appeal. It was dismissed as successive, pursuant to Virginia Code § 8.01-654(B)(2),¹ on March 3, 1998. Patterson v. Warden, Greensville Correction Center, Record No. 972261 (Va. March 3 1998). The third state habeas petition alleged counsel was ineffective because he did not appeal petitioner's conviction to the Supreme Court of Virginia. Prior to the dismissal of the second petition, the third petition was dismissed as successive on February 26, 1998. Patterson v. Director, Dept. of Corrections, Record No. 972515 (Va. February 26, 1998) (unpublished).

The instant petition was signed by petitioner on April 9, 1998, and filed on April 15, 1998. In it, petitioner alleges that:

(1) trial counsel was ineffective because he failed to appeal petitioner's convictions to the Supreme Court of Virginia;

(2) trial counsel was ineffective by pursuing on appeal only the single evidentiary issue of the exclusion of the letters;

(3) petitioner's right to a speedy trial was denied;

(4) the trial court erred by not striking a biased juror for cause;

(5) trial counsel was ineffective for not striking this biased juror peremptorily.

Each of these claims appeared in one of the three state petitions and, as respondent notes, has been properly exhausted in state court. See 42 U.S.C. § 1997e(a) (West Supp. 1998).

II.

On April 24, 1996, while petitioner's case was still under direct review by the Virginia Court of Appeals, the Antiterrorism and Effective Death Penalty Act of 1996 (the "Act"), Pub.L. 104-132, 110 Stat. 1214, became effective. Among other things, the Act amended 28 U.S.C. § 2244(d) to include a one-year limitations period on federal habeas corpus petitions.² This limitations period begins to run on the date the State judgment of conviction becomes final, and is tolled during the pendency of any "properly filed application for State post-conviction or other collateral review." 28 U.S.C. § 2244(d). In this case, the Virginia Court of Appeals affirmed petitioner's conviction on November 26, 1996. Allowing thirty days during which petitioner could have petitioned the Supreme Court of Virginia for appeal, petitioner's judgment of conviction became final on December 26, 1996. Accordingly, petitioner had until December 26, 1997, to file his federal habeas petition, plus an additional amount of time equal to the time any properly filed state habeas petition was pending. In this case, then, whether the limitations period expired for the instant petition turns on whether petitioner's successive state habeas petitions were "properly filed" within the meaning of the statute.

The Fourth Circuit has not yet squarely addressed what constitutes a "properly filed application" so as to trigger the tolling mechanism of § 2242(d)(2). See e.g., Gaines v. Corcoran, 153 F.3d 720, 1998 WL 487708 (4th Cir.1998) (unpublished) ("We need not decide whether the district court properly found that Appellant's second state habeas petition did not constitute a proper filing under § 2244(d)."). Courts elsewhere are split on this issue. Some district courts, including two in this circuit, hold that where a state petition is ultimately found to be procedurally barred, it is not "properly filed."³ According to this minority view, compliance with the technical filing requirements is not sufficient to qualify a petition as "properly filed"; petitioner's claims also must be non-frivolous.

The majority view, persuasive here, is to the contrary, and is lucidly set forth in the Third Circuit's opinion in Lovasz v. Vaughn, 134 F.3d 146, 147 (3d Cir.1998).⁴ There, petitioner filed twice for post-conviction relief in Pennsylvania state courts. Without discussion of the tolling mechanism, the district court dismissed the petition as time-barred. On these facts, the Third Circuit granted petitioner's request for a certificate of appealability and reversed, ruling that a "properly filed" petition is "one submitted according to the state's procedural requirements, such as rules governing time and place of filing," and that this is so without regard to the merits of the petition. Lovasz, 134 F.3d at 147.

According to Judge Becker, author of the unanimous panel opinion, principles of comity compelled this result. Pennsylvania law, he observed, does not absolutely bar all successive petitions; state courts may, in certain circumstances, grant relief in successive proceedings. Given this, Judge Becker cited as controlling "the well-established rule that a federal court should not find a state prisoner's claims procedurally barred from federal habeas review unless state law `clearly foreclose[s]' review of the claims." Id. at 148. Because state law imposed no such clear or absolute foreclosure of all successive petitions, federal courts should not inquire into the merits of a successive petition to determine whether it was "properly filed." Further support for this conclusion, as the Third Circuit correctly noted, are the practical problems likely to result from the adoption of a contrary view. Id. at 149 (citing Hughes v. Irvin, 967 F.Supp. 775, 779 (E.D.N.Y.1997)).

The Lovasz reasoning and result are persuasive here; Virginia, like Pennsylvania and many other states, does not absolutely bar all successive petitions. Virginia procedurally bars petitioners "from raising any claim in a successive petition if the facts as to that claim were either known `or available' to petitioner at the time of his original petition." Hoke v. Netherland, 92 F.3d 1350, 1354 n. 1 (4th Cir.1996). See Virginia Code § 8.01-654(B)(2) (Michie Supp.1998). Thus, here, as in Lovasz, the status of a petition as "properly filed" under § 2242(d)(2) depends not on the petition's merits, but on whether the state's procedural filing requirements have been met.

This rule, applied here, makes clear that petitioner's second and third state petitions were properly filed and the limitations period was tolled during the pendency of these petitions. It follows, then, that the instant federal petition is timely filed. More specifically, petitioner's initial state habeas petition was filed March 14, 1997, and denied April 30, 1997, a period of 47 days. The second petition was filed on October 27, 1997, and dismissed March 3, 1998, a period of 127 days.⁵ Adding 174 days, the sum of the two tolling periods, to December 26, 1997 (one year after the original judgment became final), petitioner's federal habeas petition would be barred only if filed after June 29, 1998. In fact, petitioner signed his petition on April 9, 1998,...