RODERICK C. YOUNG, Magistrate Judge.
Ernest Donald Washington, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 5)
On September 28, 2010, following a jury trial, Washington was convicted of "six counts of attempted indecent liberties" and "five counts of use of a computer to expose his genital parts to a person he had reason to believe was a child." (ECF No. 26-2, at 1 (citation omitted).) The Circuit Court sentenced Washington to eighty years of imprisonment. (See id.)
Washington appealed. (See ECF No. 26-1, at 1.) On August 9, 2011, the Court of Appeals of Virginia denied Washington's petition for appeal. (Id. at 3.) Washington pursued a further appeal to the Supreme Court of Virginia. See Washington v. Commonwealth, No. 111639, at 1 (Va. May 3, 2012). On May 3, 2012, the Supreme Court of Virginia refused Washington's petition for appeal. Id. Thereafter, on July 20, 2012, the Supreme Court of Virginia denied Washington's "request for an extension of time to file an amended petition for rehearing in [the] case." Washington v. Commonwealth, No. 111639, at 1 (Va. July 20, 2012).
On January 2, 2013, Washington filed a petition for a writ of habeas corpus in the Circuit Court. (See ECF No. 26-2, at 2.) On September 16, 2014, the Circuit Court denied Washington's state habeas petition. (ECF No. 26-2, at 7-8.) Washington failed to properly perfect an appeal to the Supreme Court of Virginia. See Washington v. Commonwealth, No. 1477-16-4, at 1 (Va. Ct. App. Dec. 2, 2016).
On January 22, 2015, Washington filed his first federal petition for a writ of habeas corpus ("First § 2254 Petition").
On November 6, 2018, Washington filed the instant § 2254 Petition. (ECF No. 1, at 3.)
Respondents contend that the federal statute of limitations bars Washington'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 habeas corpus by a person in custody pursuant to the judgment of a state court. Specifically, 28 U.S.C. § 2244(d) now reads:
28 U.S.C. § 2244(d).
Under 28 U.S.C. § 2244(d)(1)(A), Washington's conviction became final on October 18, 2012,
The statute of limitations began running on October 19, 2012. Seventy-five days of the limitation period expired before Washington filed his state petition for a writ of habeas corpus on January 2, 2013. (See ECF No. 26-2, at 2); see also 28 U.S.C. § 2244(d)(2). The statute of limitations began running again on September 17, 2014, the day after the Circuit Court dismissed Washington's state petition for a writ of habeas corpus. (See ECF No. 26-2, at 7-8.) On January 22, 2015, Washington filed his First § 2254 Petition in this Court. See First § 2254 Pet. 14, Washington v. Beale, No. 3:15CV69-HEH (E.D. Va. filed Jan. 22, 2015), ECF No. 1. Thereafter, Washington moved to withdraw his First § 2254 Petition (see ECF No. 26-3, at 1), and by Memorandum Opinion and Order entered on July 13, 2015, the Court granted Washington's Motion to Withdraw and dismissed the action without prejudice. (Id. at 1-2.)
However, because "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," Washington's First § 2254 Petition did not toll the limitation period. Duncan v. Walker, 533 U.S. 167, 181 (2001). Therefore, after the limitation period began to run again on September 17, 2014, two hundred and ninety-three days later, on July 6, 2015, the limitation period expired.
Washington contends that he is entitled to a belated commencement of the limitation period under 28 U.S.C. § 2244(d)(1)(D). (See § 2254 Pet. 13.) In support of that contention, Washington argues: "I learn[ed] about the due diligence in studying my own case and ask for a certificate of appealability so I can correct the errors that were made in my first habeas [petition], which I did not know how to do. The main claims were not brought up." (Id.)
Under 28 U.S.C. § 2244(d)(1)(D), a petitioner may be entitled to a belated commencement of the limitation period to "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)(D). "[T]he petitioner bears the burden of proving that he exercised due diligence, in order for the statute of limitations to begin running from the date he [or she] discovered the factual predicate of his claim, pursuant to 28 U.S.C. § 2244(d)(1)(D)." DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006) (citing Lott v. Coyle, 261 F.3d 594, 605-06 (6th Cir. 2001)). A habeas applicant who "merely alleges that [he or she] did not actually know the facts underlying his or her claim does not" thereby demonstrate due diligence. In re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997). Rather, to obtain a belated commencement of the limitation period, the applicant must explain why a reasonable investigation would not have unearthed the facts prior to the date under which the limitation period commenced under 28 U.S.C. § 2244(d)(1)(A). See id. at 1540-41 (rejecting petitioner's assertion that he could not have discovered his new Brady claim prior to filing his first § 2254 petition).
Here, Washington presents claims regarding the Circuit Court's lack of jurisdiction over his case, the sufficiency of the evidence, and the ineffectiveness of trial counsel and appellate counsel. (See § 2254 Pet. 5, 7, 8, 10.) To qualify for belated commencement under 28 U.S.C. § 2244(d)(1)(D), Washington must demonstrate that a reasonable investigation would not have unearthed the factual predicates of these claims until after his conviction became final on October 18, 2012. At the latest, Washington was aware of the facts underlying all of his claims at the conclusion of his direct appeal on July 20, 2012. Washington fails to provide any facts or argument to suggest that he acted with due diligence.
Furthermore, in his Response to the Motion to Dismiss, Washington vaguely suggests that "[a]ll the claims fall under a fundamental miscarriage of justice" and "a fundamental miscarriage of justice is shorthand for a situation where a constitutional violation [resulted] in the conviction of one [who] is actually innocent of the substantive offense." (ECF No. 32, at 9-10 (citation omitted) (internal quotation marks omitted)). However, Washington fails to tender any new reliable evidence of his innocence or otherwise coherently demonstrate why his § 2254 Petition should be deemed timely filed. See 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)); see also Calderon v. Thompson, 523 U.S. 538, 559 (1998) (citation omitted) (emphasizing that actual innocence means factual innocence and not just legal insufficiency). Accordingly, the § 2254 Petition is barred by the statute of limitations.
On May 6, 2019, Washington filed a Motion to Amend seeking leave of Court to add an attachment to his § 2254 Petition. (ECF No. 34.) Washington submitted the proposed attachment, which consisted of pages from the trial transcript, as an exhibit to his motion. (ECF No. 34-1.) Subsequently, Washington filed a Supplement to his § 2254 setting forth additional facts and argument to support Claim One. (ECF No. 35, at 1-2.) Washington's Motion to Amend (ECF No. 34) will be GRANTED to the extent that the Court will consider Washington's attachment. The Court will also consider Washington's Supplement to his § 2254 Petition. Nevertheless, the Motion to Amend and the subsequent Supplement have no impact on the conclusion that the § 2254 Petition is barred by the relevant statute of limitations.
For the foregoing reasons, Washington's Motion to Amend (ECF No. 34) will be GRANTED. Respondents' Motion to Dismiss (ECF No. 24) will be GRANTED. Washington's § 2254 Petition (ECF No. 5) will be DENIED. The action will be DISMISSED. A certificate of appealability will be DENIED.
An appropriate Final Order shall issue.
