Opinion
Civil Action 2:24-cv-425
01-27-2025
HENRY YU, #1380986 Petitioner, v. CHADWICK DOTSON, Director of the Virginia Department of Corrections, Respondent.
REPORT AND RECOMMENDATION
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE
Pro se Petitioner Henry Yu ("Yu") filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that he improperly pled guilty to three counts of felon in possession of a firearm and three counts of manufacturing explosives because of ineffective assistance of counsel. Pet. (ECF No. 1, at 5, 7) . Respondent Chadwick Dotson filed a Rule 5 Answer and moved to dismiss the petition. (ECF Nos. 5-6). Yu filed a response in opposition, (ECF No. 11), and the matter was referred to me for a recommendation under 28 U.S.C. § 636(b)(1)(B). After considering both parties' arguments, this Report concludes that Yu's petition is time-barred and recommends that the court grant Respondent's Motion to Dismiss, (ECF No. 5), and dismiss the Petition, (ECF No. 1), with prejudice.
I. FACTUAL AND PROCEDURAL HISTORY
Yu is a Virginia Department of Corrections ("VDOC") offender currently incarcerated at Greensville Correctional Center. Pet. (ECF No. 1, at 1) . On January 1, 2014, law enforcement executed a warrant on Yu's home and located nine firearms, a Mag-Lite improvised explosive device, and two improvised hand grenades. Br. Supp. Rule 5 Answer Mot. Dismiss ("Resp't Br.") Ex. 3 (ECF No. 7-3, at 4-5) . Law enforcement also discovered three videos of Defendant handling guns on three separate occasions: (1) a video produced on October 7, 2012, of Defendant shooting himself in the torso with a handgun while wearing a bulletproof vest, (2) a video produced on October 28, 2012, of Defendant holding a handgun, and (3) a video produced on January 1, 2014, of Defendant shooting himself in the head with a revolver while playing Russian Roulette. Id. at 4.
On February 9, 2015, Yu pled guilty to three counts of manufacturing explosives, three counts felon in possession of a firearm, and one count of possession of a firearm while in possession of a controlled substance. Ex. 4 (ECF No. 7-4, at 13) . Yu was convicted and sentenced to thirty-six years with thirteen years suspended. Ex. 5 (ECF No. 7-5, at 2-3).
On July 3, 2024, Yu filed this federal petition for a writ of habeas corpus under 28 U.S.C. § 2254, asserting ineffective assistance of counsel and actual innocence. Pet. (ECF No. 1, at 5, 7). Specifically, Yu claims that because of his counsel's "misadvice," he pled guilty to two additional counts of felon in possession of a firearm and two additional counts of manufacturing explosives. Id. at 5, 7, 18-20.
Yu explains that his attorney failed to discover Acey v. Commonwealth, 511 S.E.2d 429 (Va. Ct. App. 1999). Id. at 5, 1819. Yu interprets Acey to mean that in felon in possession cases, one or more firearms stored together constitutes one transaction; therefore, he unnecessarily pled guilty to two additional felon in possession charges. Id. at 19-20. Yu also applies this reasoning to two of his counts of manufacturing explosives, arguing that "the statutory language of Va. Code § 18.2-85 refers to fire bombs and explosives in the plural," indicating that the "General Assembly intended for a defendant to only face one count, whether they possessed one fire bomb or explosive device, or one hundred." Id. at 21.
Yu concedes in his petition that he failed to exhaust his claims in state court and that he filed the present petition after the statute of limitations expired. Id. at 5, 7, 13. Yu claims that the court should excuse his late filing because his counsel's error was not discoverable by Petitioner until after the statute of limitations had expired, and because, under the reasoning of Acey v. Commonwealth, he is actually innocent of four of the six charges he pled guilty to. Id. at 5, 7, 13.
On August 21, 2024, Respondent filed a Rule 5 Answer and moved to Dismiss the Petition, arguing that Yu failed to exhaust his claims and that his claims are untimely. (ECF Nos. 5-8) . Specifically, Respondent explains that because Yu did not appeal or file a state petition for writ of habeas corpus, the deadline for Yu to file his § 2254 petition expired over eight years ago. Resp't Br. (ECF No. 7, at 7). Further, Respondent argues that Yu's actual innocence claim fails because each separate incident of possession of a firearm by a convicted felon establishes a new offense that the government can prove, giving rise to Yu's three separate charges under Va. Code Ann. § 18.2-308.2. Id. at 9. Respondent also contends that Yu's argument as to the manufacturing explosives charges also fails because Yu failed to point to an intervening change in the law that establishes his actual innocence. Id. at 10-11. After the notice required by Roseboro, Yu responded on September 23, 2024. Pet'r's Objs. Resp't's Answer & Mot. Dismiss (ECF No. 11).
II. RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Habeas petitions filed pursuant to 28 U.S.C. § 2254 challenge a state's custody over a petitioner on the grounds that such custody violates "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In this case, Yu invokes his right to effective assistance of counsel. But Yu is time-barred from raising those claims now in federal court, and he offers no valid reason to excuse his untimely filing. This Report thus recommends the court GRANT Respondent's Motion to Dismiss, (ECF No. 5), and DISMISS Yu's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, (ECF No. 1), with prejudice.
A. Yu's Petition is Time-Barred Under the One-Year Federal Statute of Limitations.
Yu's instant habeas petition is time-barred by the one-year federal statute of limitations. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") sets forth a one-year statute of limitations for habeas actions filed by a petitioner "in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d) (1) . A petitioner alleging a violation of federal rights regarding a state conviction must file a petition for writ of habeas corpus in federal court no later than one year after "the judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d) (1) (A). The one-year limitation is tolled for "[t]he 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." § 2244(d)(2).
28 U.S.C. § 2244 provides three other dates that could begin the statute of limitations. However, neither party argues that subsections (B), (C), or (D), should be the basis for the start date, and therefore this Report does not discuss these alternative dates. See 28 U.S.C. § 2244 (d) (1) (B) - (D) .
Yu's criminal convictions became final on July 31, 2015, and he declined to appeal or file a state petition for a writ of habeas corpus. Ex. 5 (ECF No. 7-5, at 3). Thus, Yu's federal limitation period for a challenge to his underlying conviction expired on August 30, 2016, over eight years before Yu filed the present petition. See 28 U.S.C. § 2244(d)(1)(A).
Yu admits that his Petition is untimely but argues that "this Court should allow him to proceed with this matter, on the grounds that due to Ineffective Assistance of Counsel during the guilty plea of this matter, Counsel's performance 'resulted in the conviction of one who is actually innocent.'" Pet. (ECF No. 1, at 17) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). As explained below, Yu's untimely filing cannot be excused because he presented insufficient evidence to warrant equitable tolling or to prove actual innocence.
B. Yu Presented Insufficient Evidence to Warrant Equitable Tolling.
Yu's Petition-filed on July 3, 2024-is untimely under 28 U.S.C. § 2244 (d) (1) (A) . In rare circumstances, an untimely filed habeas petition may be subject to equitable tolling if the petitioner can establish "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" that prevented a timely filing. Holland v. Florida, 560 U.S. 631, 634 (2010). The Fourth Circuit limits equitable tolling to 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." Whiteside v. United States, 775 F.3d 180, 184 (4th Cir. 2014) (citing Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)).
Yu has not attempted to establish grounds for equitable tolling, and there is no evidence in the record to justify Yu's untimely filing. First, he has not established that he diligently pursued his rights because he did not exercise "reasonable diligence." Holland, 560 U.S. at 653. In Holland, the U.S. Supreme Court found that the petitioner met this prong because he "wrote his attorney numerous letters seeking crucial information" and also contacted various third parties over and over to have his attorney removed from his case. Id. By contrast, Yu waited over nine years from his conviction date to raise-for the first time in a federal habeas petition-a claim available to him at trial. See Roberts v. Watson, 697 F.Supp.2d 646, 653 (E.D. Va. 2010) ("Unexplained delays in filing petitions do not demonstrate diligence on the part of petitioner pursuing his rights.") .
Second, Yu has not alleged that "some extraordinary circumstance stood in his way" that prevented his timely filing of his present claims. Id. Because he offers no extraordinary circumstances that prevented him from filing a federal habeas petition within the time limit, he has not plausibly alleged any reason to excuse the time-bar.
C. Yu Presented Insufficient Evidence of Actual Innocence to Overcome the Time-Bar.
A petitioner may still overcome a time-bar if he or she makes "a convincing showing of actual innocence." McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) . The threshold requirement to prove actual innocence is high, and "a petitioner must . . . demonstrate that the totality of the evidence would prevent any reasonable juror from finding him guilty beyond a reasonable doubt, such that his incarceration is a miscarriage of justice." Teleguz v. Pearson, 689 F.3d 322, 329 (4th Cir. 2012) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). To be credible, an actual innocence claim requires the petitioner to provide "new reliable evidence- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup, 513 U.S. at 324. Because Yu pled guilty, the pertinent question is whether Yu has presented reliable evidence that is "'new' relative to the time he entered his guilty plea." Dick v. Muse, No. 3:10-cv-505, 2014 WL 4854689, at *2 (E.D. Va. Sept. 29, 2014).
Yu claims that the "additional convictions" he received from pleading guilty to multiple counts of felon in possession of a firearm and manufacturing explosives "are a miscarriage of justice." Pet. (ECF No. 1, at 5). In ground one, Yu claims that his counsel's error-failing to find Acey v. Commonwealth before he entered his guilty plea-"was not discoverable until after the statute of limitations had expired." Id. at 6. With respect to ground two, Yu similarly argues that the fact that "the statutory language references the prohibitions in the plural . . . was not discoverable by Petitioner until after the statute[] of limitation[s] had expired." Id. at 7.
However, Acey v. Commonwealth is not new, reliable evidence; it merely provides a legal argument that existed at the time of his guilty plea. Moreover, where "the evidence establishes that multiple firearms were separately possessed at different times, the [Acey] rule does not apply and separate possession offenses exist." Clay v. Commonwealth, 552 S.E.2d 369, 371 (Va. Ct. App. 2001). The Commonwealth's evidence-unrebutted in Yu's petition- establishes that Yu separately possessed firearms on at least three occasions as captured on his videos of October 7, 2012, October 28, 2012, and January 1, 2014. Further, Yu presents his own statutory interpretation argument unsupported by case law in ground two, which also existed at the time of his guilty plea. Neither of these arguments are "new," nor do they constitute "evidence" as required under the demanding Schlup standard. See 513 U.S. at 324.
A petitioner must "prove that he is factually innocent of the offenses of which he was convicted, not just that his conviction is legally deficient in some way." Edwards v. Clarke, No. 1:22-cv-769, 2024 WL 921398, at *10 (E.D. Va. Mar. 4, 2024) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)) (emphasis added). Because Yu fails to provide "new, reliable evidence . . . that was not presented at trial," Yu does not meet the high standard required to show actual innocence. See Schlup, 513 U.S. at 324.
III. RECOMMENDATION
Because Yu's federal habeas petition is time-barred, and because no claim of equitable tolling or actual innocence excuses his untimely filing, the undersigned recommends that Respondent's Motion to Dismiss be GRANTED, (ECF No. 5), and Yu's Petition, (ECF No. 1), be DISMISSED with prejudice.
IV. REVIEW PROCEDURE
By copy of this report and recommendation, the parties are notified that pursuant to 28 U.S.C. § 636(b)(1)(C):
1. Any party may serve upon the other party and file with the Clerk written objections to the foregoing findings and recommendations within fourteen (14) days from the date this report is forwarded to the objecting party by Notice of Electronic Filing or mail, see 28 U.S.C. § 636(b)(1), computed pursuant to Rule 6(a) of the Federal Rules of Civil Procedure. Rule 6(d) of the Federal Rules of Civil Procedure permits an extra three (3) days, if service occurs by mail. A party may respond to any other party's objections within fourteen (14) days after being served with a copy thereof. See Fed.R.Civ.P. 72(b) (2) (also computed pursuant to Rule 6(a) and (d) of the Federal Rules of Civil Procedure).
2. A district judge shall make a de novo determination of those portions of this report or specified findings or recommendations to which objection is made.
The parties are further notified that failure to file timely objections to the findings and recommendations set forth above will result in a waiver of appeal from a judgment of this court based on such findings and recommendations. Thomas v. Arn, 474 U.S. 140 (1985); Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).