M. HANNAH LAUCK, Magistrate Judge.
Petitioner Alphonso R. Nelson, a Virginia state inmate proceeding pro se, brings this petition for a writ of habeas corpus ("§ 2254 Petition") pursuant to 28 U.S.C. § 2254.
On March 1, 2001, a jury in the Circuit Court of the City of Fredericksburg, Virginia ("Circuit Court") found Nelson guilty of first degree murder and use of a firearm in the commission of murder. Commonwealth v. Nelson, Nos. CR2000-534 and CR2000-535, at 2 (Va. Cir. Ct. Mar. 5, 2001.) By order entered August 13, 2001, the Circuit Court sentenced Nelson to life in prison as to Count One and three years as to
On January 25, 2002, the Court of Appeals of Virginia ("Court of Appeals") dismissed Nelson's appeal for failure to timely file his notice of appeal with the Circuit Court. Nelson v. Commonwealth, No. 0129-02-2, at 1 (Va. Ct. App. Jan. 25, 2002). Nelson then filed a habeas corpus petition in the Circuit Court seeking a delayed appeal.
On May 18, 2004, the Court of Appeals affirmed Nelson's convictions. Nelson v. Commonwealth, No. 3408-02-2, at 1 (Va. Ct. App. May 18, 2004). On September 29, 2004, the Supreme Court of Virginia refused his petition for appeal. Nelson v. Commonwealth, No. 041413, at 1 (Va. Sept. 29, 2004). Nelson sought no review from the Supreme Court of the United States.
More than six years later, on January 24, 2011, Nelson filed a petition for writ of habeas corpus with the Circuit Court. Petition for Writ of Habeas Corpus at 1, Nelson v. Watson, No. CL11-35 (Va. Cir. Ct. filed Jan. 24, 2011.) On March 9, 2011, the Circuit Court dismissed his petition as not timely filed under section 8.01-654(A)(2) of the Virginia Code.
On April 28, 2012, Nelson filed his § 2254 Petition.
In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he or she is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Thus, "claims of error occurring in a state post-conviction proceeding cannot serve as a basis for a federal habeas corpus relief." Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (citing cases). Such claims provide no basis because the habeas petitioner's detention results from the underlying state conviction, not the state collateral proceeding. Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008). ("[E]ven where there is some error in state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the assignment of error relating to those post-conviction proceedings represents an attack on a proceeding collateral to detention and not to the detention itself." (citing Bryant, 848 F.2d at 493)). Because Nelson's fourth claim merely complains of error in the state post-conviction proceedings, that claim fails to provide a cognizable basis for federal habeas corpus relief. Accordingly, Claim 4 will be DISMISSED.
Under federal law, state prisoners filing a writ for habeas corpus must abide by a one-year limitation period. Specifically, 28 U.S.C. § 2244(d) states:
28 U.S.C. § 2244(d).
Pursuant to 28 U.S.C. § 2244(d)(1)(A), Nelson's judgment became final on Tuesday, December 28, 2004, the last day to file a petition for certiorari in the Supreme Court of the United States. 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 § 2244(d)(1)(A))); Sup. Ct. R. 13(1) (petition for certiorari should be filed within ninety days of entry of judgment by state court of last resort or of the order denying discretionary review). Thus, under § 2244(d)(1)(A), Nelson had one year, or until Wednesday, December 28, 2005 to file a federal habeas corpus petition challenging his conviction or sentence. He failed to file his § 2254 Petition until April 28, 2012, approximately six years and four months beyond the limitation period. Unless Nelson's claim qualifies for tolling of the limitation period, he has failed to timely file his § 2254 Petition.
To qualify for statutory tolling, an action must be a (1) properly filed (2) post-conviction or other collateral review of (3) the pertinent judgment. 28 U.S.C. § 2244(d)(2). "[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). These rules and laws "usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and the office in which it must be lodged, and the requisite filing fee." Id (footnote omitted). A petition that a state court denies as untimely fails to qualify as "properly filed" within the meaning of the Antiterrorism and Effective Death Penalty Act. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
Nelson filed a petition for writ of habeas corpus in the Circuit Court and an appeal to the Supreme Court of Virginia, but his claims fail to qualify for statutory tolling. First, because Nelson filed his petition after the federal statute of limitations had expired, no period to toll existed.
Nelson filed his § 2254 Petition on April 28, 2012, six years and four months after the limitation period expired. Because Nelson failed to file his § 2254 Petition within one year, the statute of limitations bars his § 2254 Petition unless he can demonstrate entitlement to belated commencement or equitable tolling. Nelson argues his actual innocence entitles him to equitable tolling. This argument falls short because Nelson provides no new, reliable evidence and fails to establish his claim of actual innocence.
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, 130 S.Ct. 2549, 2562 (2010) (quoting Pace, 544 U.S. at 418). A petitioner asserting equitable tolling `bears a strong burden to show specific facts' to demonstrate that he or she 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)).
Nelson claims his actual innocence justifies his delayed petition. The Supreme Court has recognized actual innocence as a basis for tolling the statute of limitations. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013) (explaining that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of limitations").
"Claims of actual innocence, whether presented as freestanding ones or merely as gateways to excuse a procedural default, should not be granted casually." Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (citations omitted). Here, the Court reviews Nelson's arguments under the more lenient standard for gateway actual innocence claims, because subscribing to Nelson's actual innocence claims would permit the Court to consider the merits of his otherwise time-barred habeas petition. A gateway claim requires "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). "Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id.
If a petitioner meets the burden of producing new, truly reliable evidence of his or her innocence, the Court then considers `all the evidence,' old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under `rules of admissibility that would govern at trial' and determines whether the petitioner has met the standard for a gateway claim of innocence. House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at 327-28). The Court must determine "whether `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir. 2010) (quoting Schlup, 513 U.S. at 327-28). "The Court need not proceed to this second step of the inquiry unless the petitioner first supports his or her claim with evidence of the requisite quality." Hill v. Johnson, No. 3:09cv659, 2010 WL 5476755, at *5 (E.D.Va. Dec. 30, 2010) (citing Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997); Feaster v. Beshears, 56 F.Supp.2d 600, 610 (D. Md. 1999)).
Nelson presents two arguments to support his actual innocence claim. First, Nelson asserts that the "alibi evidence petitioner's defense witness presented at trial negates all physical possibility that the petitioner had committed any crime." (Mem. Supp. § 2254 Pet. 7-8.) Nelson claims he was in New York at the time of the murder, and he produced a witness who testified to that effect. Nelson already presented this alibi evidence at trial through the testimony of Alaya Frederick.
Second, Nelson avers that the Commonwealth's Attorney and Fredericksburg Police Department failed to preserve evidence "which possessed exculpatory value that was apparent before the evidence was surrendered . . . without further testing of the weapon for any fingerprints or other DNA evidence, which would prove petitioner's actual innocence." (Mem. Supp. § 2254 Pet. 10 (capitalization corrected).) Nelson suggests that the absence of his DNA, or the presence of someone else's DNA, on the murder weapon would exonerate him. Nelson's mere allegation of the existence of new evidence falls short of the burden of presenting "new reliable evidence" of his actual evidence. See Weeks, 119 F.3d at 1351-52 (explaining that allegations of evidence without "substance" prove insufficient to satisfy the requirement of "new reliable evidence"). Nelson's bare, conclusory assertion absent the upshot of any actual evidence gleaned from testing the weapon fails to invoke the actual innocence exception. Nelson's alibi evidence and allegations of exculpatory evidence do not qualify as "new reliable evidence." Thus, the Court need not proceed to the second step of the actual innocence inquiry.
Even considering Nelson's previously presented alibi evidence and new allegations about the untested firearm as "new evidence," Nelson falls far short of meeting his burden of demonstrating actual innocence. He fails to show that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Sharpe, 593 F.3d at 377 (quoting Schlup, 513 U.S. at 327-28). The Virginia Court of Appeals aptly summarized the overwhelming evidence of Nelson's guilt as follows:
Nelson v. Commonwealth, No. 3408-02-2, at 3-4 (Va. Ct. App. July 11, 2003).
Considering all of the evidence, old and new, Nelson fails to demonstrate that "`it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Sharpe, 593 F.3d at 377 (quoting Schlup, 513 U.S. at 327-28). In sum, Nelson's "new evidence" consists of an already rejected alibi and the bald assertion that testing the murder weapon for physical evidence might exonerate him. Neither piece of evidence carries significant exculpatory value.
As to the alibi, Alaya Frederick may have testified Nelson never left New York in December of 1999, but Linda Alexander, who is Solomon Alexander's mother and Nelson's second cousin, testified that Nelson stayed at her home in Stafford, Virginia around the time of the murder. (Trial Tr. vol. V, 356:20-357:20; vol. VI, 17:1-19:11.)
As to any exculpatory evidence, Nelson speculates that further testing of the murder weapon would undoubtedly prove his innocence. However, the potential absence or presence of Nelson's DNA on the weapon, weighed against the compelling evidence of his guilt, fails to demonstrate Nelson's innocence. Multiple eyewitnesses identified Nelson as the shooter. The police recovered the murder weapon from the apartment Nelson fled to after the shooting. The alibi testimony and Nelson's specultation about DNA test results have little, to no, exculpatory value.
Nelson cannot meet his burden of demonstrating actual innocence. Therefore, he fails to establish that his alleged actual innocence permits the Court to reach the merits of his time-barred § 2254 Petition.
For the foregoing reasons, the Court finds Nelson's § 2254 Petition barred by the statute of limitations. Accordingly, the Respondent's Motion to Dismiss (ECF No. 10) will be GRANTED, Nelson's claims will be DISMISSED, Nelson's § 2254 Petition will be DENIED, and the action will be DISMISSED.
A petitioner may not appeal 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 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 Nelson is entitled to further consideration in this matter. A COA will therefore be DENIED.
An appropriate Order shall issue.
28 U.S.C. § 2254(a).
Va. Sup. Ct. R. 5:9(a).
