Sterling Lacy House v. Clarke

• Decision Date: 14 March 2017
• Docket Number: Civil Action No. 3:16CV238
• Court: U.S. District Court — Eastern District of Virginia
• Parties: STERLING LACY HOUSE, Petitioner, v. HAROLD W. CLARKE, Respondent.

STERLING LACY HOUSE, Petitioner, v. HAROLD W. CLARKE, Respondent.

Civil Action No. 3:16CV238

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

March 14, 2017

MEMORANDUM OPINION

Sterling Lacy House, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his convictions in the Circuit Court for the County of Brunswick, Virginia ("Circuit Court"). Respondent moves to dismiss on the ground that, inter alia, the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. (ECF No. 9.) House has filed a Response. (ECF No. 13.) House has also filed a "Motion for Rule 7. of § 2254 Cases Expansion of Record" ("Motion to Expand the Record," ECF No. 14). Respondent has filed a Response (ECF No. 20) to the Motion to Expand the Record, and House has filed a Reply (ECF No. 21). For the reasons set forth below, Respondent's Motion to Dismiss (ECF No. 9) will be GRANTED, and House's Motion to Expand the Record (ECF No. 14) will be DENIED.

I. PERTINENT PROCEDURAL HISTORY

Following a bench trial held on March 25, 2010, House was convicted of statutory burglary and attempted robbery. (ECF No. 11-1, at 3.) On June 24, 2010, the Circuit Court entered final judgment and sentenced House to an active sentence of twelve years. (Id. at 2.) House appealed. On September 20, 2011, the Supreme Court of Virginia refused House's petition for appeal. (ECF No. 11-3, at 1.) On November 14, 2011, the Supreme Court of Virginia denied House's petition for rehearing. (Id. at 2.)

On November 14, 2013, House filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. (See ECF No. 11-5, at 1.) On March 24, 2014, the Supreme Court of Virginia dismissed House's petition, concluding that it was not timely filed under section 8.01-654(A)(2) of the Virginia Code. (Id.)

On May 28, 2014,¹ House filed a Motion to Vacate and to Declare Void Ab Initio Judgment of Conviction and Sentence in the Circuit Court. (ECF No. 1-1, at 1.) On February 23, 2016, the Circuit Court denied House's Motion for lack of jurisdiction. (ECF No. 11-4, at 1.)

On or about April 17, 2016, House filed his § 2254 Petition in this Court.² (§ 2254 Pet. 15.)³ In his § 2254 Petition, House raises two claims for relief:

Claim One: "The Petitioner is being denied his U.S. Const. right to due process upon his Mot. to Vacate & habeas corpus petition." (Id. at 6.)

As a second claim for relief, House states: "Petitioner advances all claims raised in the attached Motion to Vacate, and habeas corpus petition, where he has been denied due process in state courts." (Id. at 8.)⁴ House does not even make an effort to list those claims in his § 2254Petition; instead, he has attached copies of his state court filings in no order. Generally, "[a] petitioner 'may not simply incorporate by reference' claims and facts set forth in the state proceedings, but which are not recited in the federal petition for a writ of habeas corpus." Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *1 n.2 (E.D. Va. Mar. 4, 2011) (quoting Cox v. Angelone, 997 F. Supp. 740, 746 (E.D. Va. 1998)). "Incorporation by reference does not conform to the rules governing pleading for habeas proceedings." Id. (citing Davidson v. Johnson, No. 3:08cv406, 2008 WL 4159737, at *2 (E.D. Va. Sept. 9, 2008)). Nevertheless, the Court has sifted through House's state court attachments to find the following claims:

Claim Two: House's Sixth Amendment⁵ rights were violated when he was denied the opportunity to confront witnesses against him. (ECF No. 1-1, at 2.)

Claim Three: House's Fifth Amendment right to due process⁶ was violated when the prosecution withheld exculpatory evidence. (Id. at 3.)

Claim Four: Trial counsel rendered ineffective assistance⁷ by:

(a) failing to locate, interview, and call as witnesses Brandon House, Derrick House, and Kevin Taylor, House's co-defendants (id. at 5);

(b) failing to determine whether the victim, Robert Williams, actually owned, leased, or rented property in Brunswick County (id.);

(c) failing to comply with the requirements of section 19.2-168 of the Virginia Code⁸ before raising issues regarding House's mental state prior to trial (id.);

(d) allowing House to take the stand in violation of section 19.2-169.1 of the Virginia Code⁹ and without informing House that he had a right not to testify under the Fifth Amendment¹⁰ (id. at 6);

(e) failing to challenge the voluntariness of House's confession in either a motion to strike or a motion to suppress (id. at 5-6); and,

(f) failing to raise the claims raised by House in his state habeas petition at trial and on appeal. (Id. at 7.)

Claim Five: The Circuit Court violated section 19.2-169.1(A) of the Virginia Code¹¹ by allowing House to take the stand without first receiving a psychiatric evaluation. (Id. at 8.)

Claim Six: House is actually innocent. (Id. at 10.)

As a preliminary matter, Claim One does not provide any basis for federal habeas relief. "[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief." Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (citing cases). This is so because House is detained as a result of the underlying state convictions, not the state collateral proceedings. See Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008). Accordingly, Claim One will be DISMISSED.

II. ANALYSIS

A. Statute of Limitations

Respondent contends that the federal statute of limitations bars House's claims. Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2244 to establish a one-year period of limitation for the filing of a petition for a writ of habeascorpus by a person in custody pursuant to the judgment of a state court. Specifically, 28 U.S.C. § 2244(d) now reads:

1. A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

2. The 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).

B. Commencement and Running of the Statute of Limitations

House's convictions became final on Monday, February 13, 2012, when the time to file a petition for a writ of certiorari expired. See Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) ("[T]he one-year limitation period begins running when direct review of the state conviction is completed or when the time for seeking direct review has expired . . . ." (citing 28 U.S.C. § 2244(d)(1)(A))); Sup. Ct. R. 13(1) (requiring that a petition for certiorari should be filed within ninety days of entry of judgment by the state court of last resort or of the order denying discretionary review). The limitation period began to run on Tuesday, February 14, 2012 and expired on Thursday, February 14, 2013. House failed to file his state habeas petition untilNovember 14, 2013, nine months after the expiration of the limitation period. Likewise, House failed to file his Motion to Vacate and to Declare Void Ab Initio Judgment of Conviction and Sentence until May 28, 2014, approximately one year and three months after the expiration of the limitation period. Thus, House lacks entitlement to any statutory tolling. Deville v. Johnson, No. 1:09CV72 (CMH/TRJ), 2010 WL 148148, at *2 (E.D. Va. Jan. 12, 2010) (citing Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)).

House failed to file his § 2254 Petition until April 17, 2016, three years and two months after the limitation period expired. House does not suggest any plausible basis for a belated commencement of the limitation period under 28 U.S.C. § 2244(d)(1)(B)-(D). Instead, House argues that he is entitled to equitable tolling and that his actual innocence excuses his failure to file his § 2254 Petition in a timely manner.

C. Equitable Tolling

The Supreme Court has "made clear that a 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglieimo, 544 U.S. 408, 418 (2005)). An inmate asserting equitable tolling "'bears a strong burden to show specific facts'" that demonstrate he fulfills both elements of the test. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)).

Here, House asserts that he is entitled to equitable tolling, stating:

The petitioner has moved with a reasonable amount of diligence, according to his circumstance in filing his § 2254 petition. He simply could not attempt to do this himself. He need[ed] someone to file on his behalf while confined in the Virginia Department of Corrections. . . .

The petitioner is borderline mental[ly] retard[ed], IQ of 54, and the mental health evaluations and records which opined the petitioner was unable to process

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