Taylor v. Clark

• Decision Date: 03 February 2021
• Docket Number: Case No. 7:19cv00703
• Citation: Taylor v. Clark, Case No. 7:19cv00703 (W.D. Va. Feb 03, 2021)
• Court: U.S. District Court — Western District of Virginia
• Parties: DANIEL TAYLOR, Petitioner, v. HAROLD CLARK, Respondent.

DANIEL TAYLOR, Petitioner, v. HAROLD CLARK, Respondent.

Case No. 7:19cv00703

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

February 3, 2021

MEMORANDUM OPINION

By: Michael F. Urbanski Chief United States District Judge

Daniel Taylor, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 8 U.S.C. § 2254, challenging his 2005 Rockingham County Circuit Court convictions for burglary, object sexual penetration, assault and battery, and giving a false name to police to avoid arrest, for which he received a total sentence of eighty-five years plus twenty-four months. The respondent has filed a motion to dismiss, alleging that the petition is untimely. After reviewing the record, the court concludes that respondent's motion must be granted, and Taylor's petition must be dismissed as time barred.

I.

On January 18, 2005, a Rockbridge County grand jury indicted Taylor for burglary with intent to commit murder, rape, or robbery, in violation of Virginia Code § 18.2-90; object sexual penetration in violation of Virginia Code § 18.2-67.2; misdemeanor assault and battery in violation of Virginia Code § 18.2-57; and misdemeanor identification fraud in violation of Virginia Code § 18.2-186.3 (B1). His first attorney, Graves, filed a motion for evaluation of competency to stand trial, which was granted, and a motion to suppress evidence, which was denied. The matter proceeded to trial before a jury on August 8, 2005.¹

The evidence, in the light most favorable to the Commonwealth, was that the victim, Virginia B-L, awoke one night the previous summer around 2:00 in the morning because her sister yelled for her to wake up, that she thought someone was in the room. She saw a man lying at the foot of her sister's bed, where the victim's daughters were also sleeping. (She, her sister, and her three children shared one bedroom.) She called her daughters to come to her, but they could not come because the man was there. Then she saw him grab her 11-year-old daughter around the waist, and she tried to pull her daughter away from him. Her sister ran out of the room to get help from their cousin's boyfriend, Eduardo, who was asleep in the other bedroom. After pulling three times, she successfully freed her daughter from the man's grip. Then, he turned towards her, grabbed her, and ripped her underwear. As she struggled to get away, she fell from the bed to the floor, and he was on top of her, trying to force his hands between her legs. He was strong and overcame her efforts to get away from him, and he inserted his fingers inside her. By then, Eduardo had come to the room and was trying to pull the intruder off her. Eduardo finally succeeded in getting him off her, and he pushed the intruder towards the stairs. The intruder ran out of the house, and her son called the police. Trial Tr. at 26-36.

The victim testified that the police arrived within three minutes, and she, her children, her sister, and Eduardo went outside to speak with the officers. Her children translatedbecause they spoke English. While describing the assailant to the officer, she saw the same man walking across the street; she recognized his clothing. The officer drove her and the children up to Hardee's to have her get a closer look at him, and she identified him as her attacker. Id. at 37-41. The victim's testimony was corroborated by her 11-year-old daughter who had been grabbed by the man. Id. at 54-63.

Deputy Christopher Dove, the first to arrive on scene during the early morning hours of August 8, 2004, testified that the victim's son spoke English very well and translated what the she said happened. While they were talking, the boy got very excited and pointed over to the trees across the street. All of them were saying "That's him; that's the man!" Dove got in his police vehicle to follow the man, because the man was just far enough away that he could have fled on foot if he realized the officer was coming. At the parking lot of Hardee's, he detained the man and placed him in cuffs. The man and his clothing matched the description he had been given of the assailant. A backup officer arrived on scene and remained with the suspect while Dove returned to their home to drive them up to the scene for identification. After the victim and her children made a positive identification, he placed the man under arrest and turned him over to Investigator Spiggle for transport to the jail. Dove then took the victim to the hospital for examination by a SANE nurse, and he took her torn underwear as evidence. Id. at 64-69.

Vickie Carruthers, SANE nurse, testified about her examination of the victim and identified photographs of the scratches on her inner thighs. The internal genitalia appeared normal, with no visible injuries. Because she alleged only digital penetration, no DNA swab was taken. Id. at 73-81.

Investigator Spiggle interviewed and took pictures of the subject at the police station, and he provided the name of Daniel Lawrence. Spiggle observed that the suspect's fingernails were long. He said he did not know his social security number. He gave "apartment J in Harrisonburg" as his address and said he worked as a landscaper. He said his reason for being in the neighborhood that night was to check about a job. He then requested an attorney. Spiggle suspected that the name given was not his real name, so arrest fingerprints were run through VCIN. By the next morning, he knew the man's name was Daniel Taylor. Id. at 82-90.

The defense offered no evidence. After closing arguments and deliberations, the jury returned a verdict of guilty on all four counts. Other than Taylor's prior record, neither side introduced any evidence at the sentencing portion of the trial. The jury recommended a verdict of twenty years for burglary, sixty-five years for sexual object penetration, and twelve months on each of the misdemeanors. The trial court then ordered a presentence report and scheduled the matter for sentencing.

No longer satisfied with his attorney, Taylor wrote a letter to the trial judge with a laundry list of complaints. The judge responded on September 26, 2005, that the proper venue for those complaints was with the Virginia State Bar. Graves filed a motion to withdraw on September 30, which the court granted on October 4, and a new attorney, Bradley, was appointed for Taylor on October 7, 2005, to represent him at the sentencing hearing. CCR² at 124-134.

Following preparation of the presentencing report, the court held Taylor's sentencing hearing on November 21, 2005, and imposed the full sentence recommended by the jury. The final order was entered December 1, 2005. Id. at 140-42. Bradley filed a notice of appeal on Taylor's behalf, in which he affirmed that a copy of the notice had been mailed to counsel of record and to the court of appeals on December 30, 2005. The trial court's date stamp reflects that it was filed in the Circuit Court on January 5, 2006. The Court of Appeals of Virginia wrote Taylor on March 13, 2006, requesting documentation pursuant to Rule 5A:3(d) of the Rules of the Supreme Court of Virginia, of when the notice was placed in the institutional mail, as the postmark on the envelope was past the deadline. (VCOAR at 2.) Taylor responded that the court would need to check with his attorney, because his attorney handled the filing of the appeal. Id. at 3. On May 8, 2006, the court of appeals dismissed the appeal because the notice of appeal was not timely filed. Id. at 5.

Twelve years later to the date, May 8, 2018, Taylor filed a state habeas corpus petition in the Supreme Court of Virginia, apparently alleging ineffective assistance of counsel and numerous other alleged errors during his trial. (Habeas R. at 1.) The court dismissed this petition as untimely by order entered July 26, 2008. Id. at 79. Taylor requested rehearing, which was denied on October 4, 2018. Id. at 81.

Taylor filed the current § 2254 petition on October 18, 2019, apparently alleging ineffective assistance of counsel and other errors during his trial. Because the petition is untimely, there is no need to catalog his claims.

II.

Under 28 U.S.C. § 2244(d)(1), a petitioner has one year in which to file a federal habeas corpus petition. This statute of limitations runs 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.

28 U.S.C. § 2244(d)(1).

Subsection A is the only one applicable to Taylor's case, as he has not alleged any facts to support application of subsections B, C, or D. Therefore, one must determine the date on which his judgment became final to determine when the one-year statute of limitations began running—and when it ended. The final order was entered by the trial court on December 1, 2005. He sought direct review in the Court of Appeals of Virginia, but that court dismissed the appeal as untimely filed. Under Virginia's statutes and rules of court, an appeal must be commenced by filing a notice of appeal with the clerk of the trial court within thirty days from entry of the final order. Va. Code §§ 8.01-675.3 and 17.1-408; Rule 5A:6 (a) of the Rules of the Supreme Court of Virginia. Thirty days from December 1would be December 31, which in 2005, was a Saturday, making the notice due the next...