Chilton v. Kelly

Full title: CHILTON v. KELLY

Court: United States District Court, N.D. West Virginia

Date published: Nov 29, 2011

Civil Action No. 3:10CV871 (N.D.W. Va. Nov. 29, 2011)

Opinion

Civil Action No. 3:10CV871.

November 29, 2011.

MEMORANDUM OPINION

James R. Spencer, Chief United States District Judge

Thomas A. Chilton, III, a Virginia inmate proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss on the grounds that, inter alia, Chilton's § 2254 Petition is barred by the relevant statute of limitations. Chilton has responded to the Motion to Dismiss and moved to strike Respondent's Response to Petitioner's Reply as an unauthorized submission. Because the Court granted Respondent permission to file the Response by Memorandum Order entered on August 29, 2011, Chilton's Motion to Strike (Docket No. 35) will be DENIED. The Motion to Dismiss is ripe for disposition.

I. PERTINENT PROCEDURAL HISTORY A. Direct Appeal

B. Chilton's Petition to Void Judgment

¹ Chilton v. Commonwealth Chilton v. Virginia552 U.S. 1014^{2 3}8.01-428⁴ in forma pauperis in forma pauperis in forma pauperis in forma pauperis ⁵

1 Chilton's initial direct appeal was dismissed on procedural grounds. Chilton filed a petition for a writ of habeas corpus with the Supreme Court of Virginia ("First State Habeas Petition"), alleging inter alia, that he had been denied effective assistance of counsel on appeal. The Supreme Court of Virginia awarded Chilton a writ of habeas corpus limited to the right to pursue a belated direct appeal. Chilton v. Warden of Sussex I State Prison, No. 050193 (Va. Aug. 25, 2005).

2 Chilton represents that he filed a petition for rehearing with the Supreme Court of the United States. (Pet'r's Statement of Timeliness under 28 USC 2244(d) ("Pet'r's Statement of Timeliness") (Docket No. 3) ¶ 5.) The docket of the Supreme Court of the United States does not support this representation.

3 This is the date the Petition for Void Judgment was signed by Chilton.

4 In 2007, that provision provided, "This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree for fraud upon the court." Va. Code Ann 8.01-428(D) (West 2007).

5 The relevant records of Chilton's prison account reflect that Chilton had roughly $450.00 deposited into his prison account between October of 2007 and March of 2008.

Chilton moved the Circuit Court to reconsider his request to proceed in forma pauperis. By Order entered on April 24, 2008, the Circuit Court denied Chilton's motion to reconsider. On May 28, 2008, the Circuit Court received from Chilton a notice of appeal from the Order denying his request to proceed in forma pauperis. By letter dated August 13, 2008, the Supreme Court of Virginia returned the record in the matter of Chilton's appeal of the denial of his request to proceed in forma pauperis because Chilton had failed to file a petition for appeal in the time required by Virginia's appellate rules.

C. Chilton's Second State Habeas Petition

On March 17, 2008,⁶ the Circuit Court received Chilton's Second State Petition for a Writ of Habeas Corpus ("Second State Habeas Petition"). On December 12, 2008, the Circuit Court denied Chilton's Second State Habeas Petition. Chilton v. Johnson, No. CL08-713 (Cir. Ct. Dec. 12, 2008.) Chilton noted an appeal to both the Court of Appeals of Virginia and the Supreme Court of Virginia.⁷ On February 16, 2010, the Supreme Court of Virginia refused Chilton's petition for appeal. Chilton v. Johnson, Nos. 091090, 091091 (Va. Feb. 16, 2010).

6 This is date that the application to proceed in forma pauperis that accompanied the Second State Habeas Petition was stamped received. Chilton v. Kelly, No. CL08-713, Cir. Ct. R. at 65 (Cir. Ct. filed Mar. 17, 2008). Chilton represents that he filed his Second State Habeas Petition on January 25, 2008. (Pet'r's Statement of Timeliness ¶ 7.) This representation is simply false. The Second State Habeas Petition was not executed and mailed to the Circuit Court until March 14, 2008. Chilton v. Johnson, No. CL08-713, Cir. Ct. R. at 52, 53 (Cir. Ct. filed Mar. 17, 2008).

7 By Order dated August 19, 2009, the Supreme Court of Virginia consolidated Chilton's appeal to the Court of Appeals of Virginia with his appeal to the Supreme Court of Virginia. Chilton v. Johnson, Nos. 091090, 091091 (Va. Aug. 19, 2009). The record does not support Chilton's assertion that his appeal from the denial of his application to proceed in forma pauperis on his Petition for Void Judgment was consolidated with the appeal of his Second State Habeas Petition. (Pet'r's Statement of Timeliness ¶ 8.)

D. Chilton's § 2254 Petition

On November 29, 2010, Chilton executed his § 2254 Petition and placed it in the prison mail system. (§ 2254 Pet. 15.) For purposes of the present motion, the federal petition will be deemed filed as of that date. See Houston v. Lack, 487 U.S. 266, 276 (1988). In his § 2254 Petition, Chilton contends that he is entitled to relief upon the following grounds: Fourth Amendment^{8 9} Fourth Amendment

8 "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ... ." U.S. Const, amend. IV.

9 "No person shall... be subject for the same offense to be twice put in jeopardy of life or limb ... ." U.S. Const, amend. V.

Claim 1 Chilton's rights under the were violated when he was arrested without probable cause. Claim 2 The evidence was insufficient to support Chilton's convictions for attempted murder, use of a firearm in the commission of a felony, and maliciously shooting into an occupied vehicle. Claim 3 The Circuit Court abused its discretion and denied Chilton a fair trial; Claim 4 The prosecution engaged in misconduct at trial by not revealing that it intended to call Travis Churchill as a witness and that it intended to provide him with favorable treatment with respect to his sentencing. Claim 5 Chilton's separate convictions for attempted murder and maliciously shooting into an occupied vehicle and Chilton's separate firearm convictions violate the Double Jeopardy Clause. Claim 6 Jury instructions 13 and 14 were unconstitutionally vague and permissive. Claim 7 The record on appeal was inadequate for review. Claim 8 Chilton's appellate rights were violated. Claim 9 Chilton was denied the effective assistance of counsel because: (a) Trial counsel failed to raise the violation alleged in Claim 1; (b) Trial counsel failed to demonstrate that Chilton lacked the requisite intent to be convicted of maliciously shooting into an occupied vehicle; (c) Appellate counsel failed to pursue meritorious issues on appeal; (d) Trial counsel should have objected to Travis Churchill's testimony; (e) Trial counsel failed to object to the prosecution's closing argument concerning Churchill's testimony; and, (f) Trial counsel failed to raise the double jeopardy violations alleged in Claim 5.

II. ANALYSIS OF THE MOTION TO DISMISS A. The Statute of Limitations

Federal law imposes a one-year limitations period on state prisoners seeking to file a petition for a writ of habeas corpus. Specifically, 28 U.S.C. § 2244(d) states:

(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 of the Statute of Limitations

C. Statutory Tolling

Hill v. Braxton277 F.3d 701704(citing28 U.S.C. § 2244¹⁰ Clay v. United States537 U.S. 52252728 U.S.C. § 2244 28 U.S.C. § 2244

10 The Supreme Court stated that,

where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review ... . "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal.

Jimenez v. Quarterman, 555 U.S. 113, 121 (2009) (quoting!*, U.S.C. § 2244(d)(1)(A)).

[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.

Artuz v. Bennett, 531 U.S. 4, 8 (2000) (second emphasis added; internal footnote omitted) (citing cases). Here, Chilton never tendered the appropriate filing or was granted leave to proceed in forma pauperis with respect to his Petition to Void Judgment. Thus, the Petition to Void Judgment was never properly filed. See id; Runyan v. Burt, 521 F.3d 942, 944-45 (8th Cir. 2008) (concluding inmate's application for post-conviction relief was not properly filed where it was not accompanied by filing fee or verified as required by Iowa law); Phillips v. Culliver, No. 06-00816-KD-B, 2009 WL 3414280, at *4 (S.D. Ala. Oct. 16, 2009) (concluding inmate's application for post-conviction relief was not properly filed because inmate failed to pay the filing fee or meet the state's requirements for proceeding in forma pauperis). Accordingly, after the conclusion of his belated direct appeal, the limitation period continued to run until Chilton filed his Second State Habeas Petition on March 17, 2008. The limitation period was tolled between that date and February 16, 2010, the date the Supreme Court of Virginia refused Chilton's petition for appeal from the denial of his Second State Habeas Petition. Upon the conclusion the appellate proceedings on Chilton's Second State Habeas Petition, Chilton had 233 days to file his § 2254 Petition. Nevertheless, 285 days elapsed before Chilton filed his § 2254 Petition on November 29, 2010.

Because the statute of limitations ran for 417 days, Chilton's § 2254 Petition is barred by the statute of limitations, unless Chilton demonstrates that he is entitled to a belated commencement of the limitation period pursuant to 28 U.S.C. §§ 2244(d)(l)(B)-(D) or equitable tolling. Neither Chilton nor the record suggest any basis for a belated commencement of the limitation period or equitable tolling.

III. CONCLUSION

Respondent's Motion to Dismiss (Docket No. 21) will be GRANTED. The § 2254 Petition will be DENIED and the action will be DISMISSED. Chilton's motions for an evidentiary hearing (Docket Nos. 43, 44) will be DENIED.

An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). No law or evidence suggests that Petitioner is entitled to further consideration in this matter. A certificate of appealability will be DENIED.

An appropriate Order shall issue.