Petition for Writ of Certiorari — Rhett Bean, Petitioner v. Israel Hamilton, Warden

USCA4 Appeal: 17-7316

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FILED: April 13, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7316

(3:16-cv-00803-JAG)

RHETT BEAN

Petitioner Appellant

-

V.

SUSSEX I STATE PRISON, Warden

Respondent Appellee

-

ORDER

The court denies the petition for rehearing.

Entered at the direction of the panel: Judge Traxier, Judge Duncan, and

Senior Judge Hamilton.

For the Court

Is! Patricia S. Connor, Clerk

USCA4 Appeal: 17-7316

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7316

RHETT BEAN,

Petitioner Appellant,

-

V.

SUSSEX I STATE PRISON, Warden,

Respondent Appellee.

-

Appeal from the United States District Court for the Eastern District of Virginia, at

Richmond. John A. Gibney, Jr., District Judge. (3:16-cv-00803-JAG)

Submitted: February 22, 2018

Decided: February 27, 2018

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Dismissed by unpublished per curiam opinion.

Rhett Bean, Appellant Pro Se. Craig Stallard, Assistant Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Rhett Bean seeks to appeal the district court's order accepting the recommendation

of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2012) petition.

The order is not appealable unless a circuit justice or judge issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not

issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C.

§ 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner

satisfies this standard by demonstrating that reasonable jurists would find that the district

court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel,

529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When

the district court denies relief on procedural grounds, the prisoner must demonstrate both

that the dispositive procedural ruling is debatable, and that the petition states a debatable

claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that Bean has not made

the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to

proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

DISMISSED

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

RHETT BEAN,

Petitioner,

Civil Action No. 3:1 6CV803

V.

SUSSEX I STATE PRISON,

Respondent.

MEMORANDUM OPINION

Rhett Bean, a Virginia state prisoner proceeding pro Se, filed this petition for habeas

corpus under 28 U.S.C. § 2254 (1 2254 Petition," ECF No. 3) challenging his convictions in the

Circuit Court for the City of Portsmouth, Virginia ("Circuit Court"). On July 18, 2017, the

Magistrate Judge issued a Report and Recommendation wherein he recommended denying

Bean's § 2254 Petition as barred by the statute of limitations. (ECF No. 33.) The Magistrate

Judge also issued a Memorandum Order wherein he, inter a/ia, denied Bean's Motion for

Discovery and Motion to Appoint Counsel to Assist in Discovery. (ECF No. 32.) Bean has filed

objections. ECF No. 34.) For the reasons that follow, Bean's objections will be OVERRULED,

the Report and Recommendation will be ACCEPTED and ADOPTED, and the action will be

DISMISSED.

I.

THE REPORT AND RECOMMENDATION

The Magistrate Judge made the following findings and recommendation:

A.

Procedural History and Bean's Claims

Following a bench trial on October 25, 2012, Bean was convicted of one

count of rape and one count of object sexual penetration. (ECF No, 28-1, at 1, 4.)

On July 19, 2013, the Circuit Court entered final judgment and sentenced Bean to

seventy-five years of incarceration, with fifteen years suspended, for rape and

Case 3:16-cv-00803-JAG Document 35 Filed 09/14/17 Page 2 of 12 PagelD# 721

seventy-five years of incarceration, with fifteen years suspended, for object sexual

penetration. (Id. at 1-2.) The Circuit Court directed that Bean's sentences run

concurrently. (Id. at 1.)

Bean appealed to the Court of Appeals of Virginia, arguing that the

evidence was insufficient to support his convictions. (ECF No. 1—I, at 1.) On

December 30, 2013, the Court of Appeals of Virginia denied Bean's appeal. (Id.)

With respect to the sufficiency of the evidence, the Court of Appeals stated:

So viewed, the evidence proved that on October 31, 2011,

appellant and the victim had sexual intercourse. The victim was

sixteen years old at the time, and appellant, a friend of the victim's

mother, spent the previOus night in the residence The victim

testified that, in the morning, appellant took her brother to the bus

stop and then returned to the residence. Appellant went to the

victim's room when the two were alone together, and appellant

began saying "nasty things." The victim testified appellant "just

jumped on [her] and he stuck his fingers into (her) vagina and then

he took his fingers out and then he placed his penis into [her]

vagina.. . ." She described how she attempted to "fight him off"

and explained appellant "pushed [her] chest down very hard" until

she "just gave up from there."

Afterwards, the victim told appellant to call her mother and

appellant said that "something jumped into [him]" and he did not

mean to do it. Appellant then left the residence. A short time

later, the victim's mother and an ambulance arrived. The victim

was examined at the hospital.

The victim's mother testified that appellant called her that

day and said that he had "done something really bad." The

victim's mother heard her daughter crying in the background and

asked appellant what had happened. Appellant repeated that he

had done something bad and stated she just had to come home.

After the victim's mother took the victim to the hospital, appellant

again called her on the phone. She allowed a police officer to

listen to the conversation. Appellant repeatedly apologized, stated

he "want[ed] to make this right," and offered to give her money

and his car. He offered to "pay for [the victim] to go to therapy for

the rest of her life," and begged her not to contact the police.

Appellant admitted having intercourse with the victim, but

claimed it was consensual. He also denied inserting his fingers

into her vagina.

Here, the trial court believed the victim's version of the

events and rejected appellant's testimony. The trial court

specifically noted that although the victim's account of the incident

was inconsistent in part with earlier accounts, the victim provided

a consistent description of the acts and "explained anything that

2

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has been the least bit different." The court also noted the victim's

testimony was corroborated in part by her mother's testimony and

that appellant's statements in the calls to the victim's mother were

"the most incriminating thing in this case. . . ." In its role of

judging witness credibility, the trier of fact is entitled to disbelieve

a defendant's self-serving testimony and conclude, that he is lying

to conceal his guilt. Marable v. Commonwealth, 27 Va. App. 505,

509-10, 500 S.E.2d 233, 235 (1998). The victim described

"hitting [appellant] with [her] fists, trying to push him off of [her]"

and explained how she resisted appellant, demonstrating appellant

accomplished the unwanted penetration through the use of force.

The record supports the trial court's credibility determination.

The Commonwealth's evidence was competent,, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that appellant was guilty of rape and object

sexual penetration.

(Id. at 1-4 (alterations in original).) On October 6, 2014, the Supreme Court of

Virginia refused Bean's petition for appeal. (Id. at 5.)

On June 15, 2015, Bean filed a petition for a writ of habeas corpus with

the Circuit Court. (ECF No. 28-1, at 4.) On November 25, 2015, the Circuit

Court denied Bean's petition. (Id. at 18-19.) On July 6, 2016, the Supreme Court

of Virginia dismissed Bean's petition for appeal pursuant to Rule 5:9(a) of the

Rules of the Supreme Court of Virginia, concluding that "the appeal was not

perfected in the manner provided by law because [Bean} failed to file the notice of

appeal[.]" (Id. at 20.)

Bean dated his initial § 2254 Petition August 15, 2016.' (ECF No. 1, at

5)2

To the extent that Bean asserts this is the date he placed his initial § 2254

Petition in the prison mailing system for mailing to this Court, the Court finds

Bean's assertion to be incredible. The envelope in which Bean mailed his initial §

2254 Petition is postmarked September 16, 2016 (Id. at 6), and the Court did not

receive Bean's initial § 2254 Petition until September 19, 2016 (Id. at 2). The

Court believes that Bean mailed his initial § 2254 Petition in September 2016.

Nevertheless, as discussed infra, even using August 15, 2016 as the date when

Bean filed his § 2254 Petition, the § 2254 Petition is untimely. Thus, the Court

Bean did not submit his initial § 2254 Petition on the standardized form used by

this Court. By Memorandum Order entered on October 13, 2016, the Court

directed the Clerk to mail the standardized form to Bean and directed Bean to

complete and return the form to the Court within eleven (11) days of the date of

entry thereof. (ECF No. 2, at 1.) The Court received Bean's standardized § 2254

Petition on October 21, 2016. (ECF No. 3.)

2 The Court utilizes the pagination assigned to Bean's submissions by the

CM/ECF docketing system. The Court corrects the spelling and capitalization in

quotations from Bean's submissions.

3

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utilizes August 15, 2016 as the filed date. See Houston v. Lack, 487 U.S. 266,

276 (1988). In his § 2254 Petition, Bean asserts the following claims for relief:

Claim One

"Trial counsel provided ineffective assistance of counsel in

violation of the United States 6th Amend Constitution." (§ 2254

Pet. 5.)

Claim Two "The sentencing counsel did [not] bring to the court's attention that

I was convicted without the bill of particulars accompanying the

indictment oh Amend violation." (Id. at 11,)

Claim Three "Appeal counsel did not raise the fact that the bill of particulars

was omitted from trial no made a record to raise the issues that I

61h Amend of

was convicted on an uncharged offense violation of

U.S. Constitution right to counsel." (id. at 12.)

Claim Four "insufficient evidence." (Id. at 14.)

B.

Analysis

1.

Statute of Limitations

Respondent contends that the federal statute of limitations bars Bean'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:

A 1-year period of limitation shall apply to an application

1.

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—

the date on which the judgment became final by the

conclusion of direct review or the expiration of the

time for seeking such review;

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;

•

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

4

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the date on which the factual predicate of the claim

or claims presented could have been discovered

through the exercise of due diligence.

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.

(D)

2.

28 U.S.C. § 2244(d).

Commencement and Running of the Statute of Limitations

The Supreme Court of Virginia refused Bean's petition for appeal on

October 6, 2014. Bean's convictions became final on Monday, January 5, 2015,

when the time to file a petition for a writ of certiorari expired. See 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

(citing 28 U.S.C.

the time for seeking direct review has expired

2244(d)(1)(A)));

Sup.

Ct.

R.

13(1)

(requiring,

that

a

petition

for certiorari be

§

filed within ninety days of entry of judgment by the state court of last resort or of

the order denying discretionary review). The limitation period began to run on

January 6, 2015, and 160 days of the limitation period elapsed before Bean filed

his state petition for a writ of habeas corpus on June 15, 2015.

.

.

.

."

Statutory Tolling

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). "CAIn 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 office in which it must be lodged, and the requisite filing

fee." Id. (footnote omitted) (citing cases).

For Bean, the limitation period was tolled from June 15, 2015, when Bean

flied his state habeas petition, until November 25, 2015, when the Circuit Court

denied his state habeas petition. Bean lacks entitlement to statutory tolling for the

period during which he pursued his appeal from the denial of his state petition

because the Supreme Court of Virginia dismissed the appeal on the ground that

Bean had not timely filed a notice of appeal. See Bolding v. Dep 'I of Corr., No.

3:10CV660, 2011 WL 2471557, at *2 (E.D. Va. June 21, 2011) (citing Rodgers v.

Angelone, 113 F. Supp. 2d 922, 929-30 (E.D. Va. 2000)); see Escalanie v.

Watson, 488 F. App'x 694, 699 (4th Cir, 2012) (refusing to toll limitation period

for the time period when the inmate's defective petition for appeal was pending

before the Supreme Court of Virginia). Accordingly, the limitation period

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recommenced upon the denial of Bean's state habeas petition by the Circuit Court

on November 25, 2015 and ran for 263 more days, until Bean filed his § 2254

Petition on August 15, 2016.

Because a total of 423 days ran until Bean filed his § 2254 Petition, the

statute of limitations bars his § 2254 Petition. Bean does not suggest any

plausible basis for a belated commencement of the limitation period under 28

U.S.C. § 2244(d)(1)(B)—(D) or equitable tolling. Instead, Bean argues that his

actual innocence excuses his failure to file in a timely manner.

4.

Actual Innocence

The Supreme Court has recognized actual innocence as a basis for

overcoming the expiration of the statute of limitations. See Mc Quiggin 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 Bean's arguments under the more lenient standard for gateway actual

innocence claims, because subscribing to Bean's actual innocence claim would

permit the Court to consider the merits of his otherwise time-barred habeas

petition.

A gateway claim requires a petitioner to present "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. !3owersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997);

Feasler v. Beshears, 56 F. Supp. 2d 600, 610 (D. Md. 1999)). Moreover, actual

innocence means factual innocence and not just legal insufficiency. Calderon v.

Thompson, 523 U.S. 538, 559 (1998) (citation omitted).

Here, Bean's assertion of actual innocence is not coupled with any new

evidence of his actual innocence. Rather, Bean supports his assertion of

. .

.

Case 3:16-cv-00803-JAG Document 35 Filed 09/14/17 Page 7 of 12 PagelD# 726

innocence with the same arguments and based upon the same testimony that he

presented at trial, which is that he had consensual intercourse with the victim.

(Resp. 2, ECF No. 20.) Bean also contends that his conviction is void "because

the bill of particulars statement of facts did not accompany the indictment which

means the reasonable doubt standard was not applied to my specific charges."

Q 2254 Pet. 17; see Resp. 1-2.) Bean's bare assertion of innocence and his

rehashing of his trial testimony and legal arguments simply fail to excuse the

untimeliness of his § 2254 Petition. See Lowe v. Zook, No. 3:15CV631, 2016 WL

3912035, at *4 (El). Va. July 19, 2016 (citing Hill, 2010 WL 5476755, at *5).

Accordingly, it is RECOMMENDED that Respondent's Motion to Dismiss (ECF

No. 16) be GRANTED and that Bean's § 2254 Petition be DENIED as barred by

the statute of limitations.

C.

Outstanding Motions

Bean has filed a Motion to Strike Respondent's pleadings, essentially

because he disagrees with various statements made by Respondent. (ECF No.

21.) Under Rule 12(f) of the Federal Rules of Civil Procedure, a court may

"strike from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Granting a motion to

strike under Rule 12(t) is within the sound discretion of the Court. See GTS!

Corp. v. Wildflower Intl, Inc., No. 1:09cv123, 2009 WL 2160451, at *4 (E.D. Va.

July 17, 2009). "To grant a Rule 12(t) motion, the court must determine that the

challenged allegations are 'so unrelated to the plaintiff's claims as to be unworthy

of any consideration as a defense and that their presence in the pleading

throughout the proceeding will be prejudicial to the moving party." Grant v.

Bank ofAm., N.A., No. 2:13—CV-342, 2014 WL 792119, at *2 (E.D. Va. Feb. 25,

2014) (quoting SC Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 1380 (2d ed. 1990)). Bean's disagreement with Respondent's

statements fails to satisfy his burden under Rule 12(f). Accordingly, it is

RECOMMENDED that Bean's Motion to Strike (ECF No. 21) be DENIED.

Bean has also filed a Motion for Summary Judgment, arguing that he is

actually innocent of his crimes of conviction. (ECF No. 22.) As discussed supra,

the Court has concluded that Bean's § 2254 Petition is barred by the statute of

limitations and that Bean fails to establish that his alleged actual innocence

permits the Court to reach the merits of his time-barred petition. Accordingly, it

Bean has also submitted copies of the discovery provided to the defense during

his criminal proceedings. "Some Circuits require the petitioner to present 'newly

discovered' evidence as opposed to evidence that is merely 'newly presented."

Lee v. Johnson, No. 2:10cv122, 2010 WL 3937334, at 5 n.9 (E.D. Va. July 28,

2010); see Royal v. Taylor, 188 F.3d 239, 244 (4th Cir. 1999) (noting that to

demonstrate actual innocence, a petitioner must produce new evidence that was

not available at the time of trial). Here, all the exhibits submitted by Bean are

neither newly discovered nor newly presented, as they existed at the time of

Bean's trial in October 2012 and were available for presentation by the defense at

that time.

7

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is RECOMMENDED that Bean's Motion for Summary Judgment (ECF No. 22)

be DENIED.

Bean has also filed a Motion for Judicial Estoppel, requesting that

the time frame in

Respondent be judicially estopped from "switching up on

which. [Respondent] contends a rape & object sexual penetration occurred in this

case." (ECF No. 23, at 9.) "Judicial estoppel is a principle developed to prevent a

party from taking a position in a judicial proceeding that is inconsistent with a

stance previously taken in court." Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir.

2007). The United States Court of Appeals for the Fourth Circuit has stated that:

. . .

"Three elements must be satisfied before judicial estoppel will be

applied." First, the party to be estopped must be advocating a

position inconsistent with one taken in prior litigation. "Second,

the prior inconsistent position must have been accepted by the

court." Finally, the party against whom judicial estoppel is

asserted must have intentionally misled the court in order to gain

unfair advantage."

U.S. Bank Nat? Assn v. Zarrabi, 560 F. App'x 181, 182 (4th Cir. 2014) (quoting

Zinkland, 478 F.3d at 638) (internal citations omitted). Bean has not

demonstrated that Respondent intentionally misled the Circuit Court in any way.

Moreover, the Court has not relied upon any timeline presented by Respondent in

determining that Bean's § 2254 Petition is time-barred. Accordingly, it is

RECOMMENDED that Bean's Motion for Judicial Estoppel (ECF No. 23) be

DENIED.

Finally, Bean has filed a Request for an Evidentiary Hearing. (ECF

No. 29.) The decision to grant an evidentiary hearing is left to the "sound

discretion of district courts." Schriro v. Landrigan, 550 U.S. 465, 473 (2007). A

federal court must consider whether the evidentiary hearing would provide the

petitioner the opportunity to "prove the petition's factual allegations, which, if

true, would entitle the applicant to federal habeas relief." Id. at 474; see Mayes v.

Gibson, 210 F.3d 1284, 1287 (10th Cir. 2000). The court must also consider the

standards prescribed by section 2254 when considering whether an evidentiary

hearing is appropriate. Schriro, 550 U.S. at 474. Here, Bean's § 2254 Petition is

time-barred, and Bean has not presented any evidence to. support his gateway

claim of actual innocence. Therefore, it is RECOMMENDED that his Request

for an Evidentiary Hearing (ECF No. 29) be DENIED.

D.

Conclusion

For the foregoing reasons, it is RECOMMENDED that the Court GRANT

Respondent's Motion to Dismiss (ECF No. 16) and DISMISS Bean's claims. It is

further RECOMMENDED that Bean's § 2254 Petition (ECF No. 3), Motion to

Strike (ECF No. 21), Motion for Summary Judgment (ECF No. 22), Motion for

Judicial Estoppel (ECF No. 23), and Request for a Evidentiary Hearing (ECF

8

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No. 29) be DENIED. It is further RECOMMENDED that the action be

DISMISSED.

(Report and Recommendation 1-10 (alterations in original).)

It.

STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION

"The magistrate makes only a recommendation to this court. The recommendation has

no presumptive weight, and the responsibility to make a final determination remains with this

court." Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993) (citing Mathews v. Weber,

423 U.S. 261,270-71(1976)). This Court "shall make a de novo determination of those portions

of the report or specified proposed findings or recommendations to which objection is made." 28

U.S.C. § 636(b)(1). "The filing of objections to a magistrate's report enables the district judge to

focus attention on those issues—factual and legal—that are at the heart of the parties' dispute."

Thomas v. Am, 474 U.S. 140, 1:47 (1985). When reviewing the magistrate's recommendation,

this Court "may also receive further. evidence." 28 U.S.C. § 636(b)(1).

III. BEAN'S OBJECTIONS

As an initial matter, Bean wholly failed to comply with the directive set forth in the

Report and Recommendation that his objections be in the form of a numbered list. Despite

Bean's failure to comply with the Court's directive, and without the benefit of the numbered list,

the Court construes Bean to raise four objections.

Bean first objects to the fact that the Magistrate Judge "did not make a recommendation

as to the request [Bean] made for the Court to determine the correct issue the Court was called

upon to answer under the indictment and information made up by the state. Nor does the Court

cite any law as to why the conviction[s] are not void as a matter of law." (Objs. 2.)

The

Magistrate Judge concluded that Bean's § 2254 Petition was barred by the statute of limitations

"The Court utilizes the pagination assigned to Bean's objections by the CMIECF docketing

system. The Court corrects the spelling in quotations from Bean's objections.

Case 3:16-cv-00803-JAG Document 35 Filed 09/14/17 Page 10 of 12 Page ID# 729

and therefore did not address the merits of Bean's claims. Bean's objection fails to "direct the

court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v.

Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (citations omitted). Accordingly, Bean's first objection

will be OVERRULED.

Next, Bean objects to the Magistrate Judge's definition of the term "new evidence' as

'newly discovered evidence." (Objs. 3.) According to Bean, "[t]he term new evidence as

tak[en] in context mean[s] the evidence is new to the subject of inquiry which is innocence."

(Id.) He contends that "[t]he term 'new evidence' must be used to cover wrongly excluded and

unavailable evidence at the time of trial." (Id.) Bean argues that under his understanding of the

term "new evidence," the Magistrate Judge erred by not considering evidence which was never

presented at trial and that was included with his § 2254 Petition.

In the Report and Recommendation, the Magistrate Judge noted that "[a] gateway claim

requires a petitioner to present 'new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented

at trial." (Report and Recommendation 7 (quoting Schiup v. Delo, 513 U.S. 298, 324 (1995).)

The Magistrate Judge also concluded that "all of the exhibits submitted by Bean are neither

newly discovered nor newly presented, as they existed at the time of Bean's trial in October 2012

and were available for presentation by the defense at that time." (Id. at 8 n.3.) The Court

discerns no error from the Magistrate Judge's conclusion regarding Bean's failure to establish a

gateway claim of actual innocence.

Accordingly, Bean's second objection will be

OVERRULED.

As his third objection, Bean challenges the Magistrate Judge's recommendation

regarding Bean's Motion for Summary Judgment. Bean faults the Magistrate Judge for "not

10

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apply[ing] the correct standard of review because [he] did not reach the merits of [Bean's]

Motion for Summary Judgment." (Objs. 4.) In his Motion for Summary Judgment, Bean argued

that he was actually innocent of his crimes of conviction. (ECF No. 22.) The Magistrate Judge

did not address the merits of Bean's Motion for Summary Judgment because he "concluded that

Bean's § 2254 Petition is barred by the statute of limitations and that Bean fails to establish that

his alleged actual innocence permits the Court to reach the merits of his time-barred petition."

(Report and Recommendation 9.) Because the Magistrate Judge correctly concluded that Bean's

§ 2254 Petition is time-barred, he did not err by not addressing the merits of Bean's Motion for

Summary Judgment. Accordingly, Bean's third objection will be OVERRULED.

Bean's final objection is to the Magistrate Judge's Memorandum Order wherein he

denied Bean's Motion for Discovery and Motion to Appoint Counsel to Assist in Discovery.

According to Bean, "[t]he Court is under the false impression that [he is] seeking discovery to

get 2254 habeas relief. Discovery is sought to develop sufficient facts that would allow [him] to

bypass the procedural bar which is a different issue than habeas relief as contemplated by 2254."

(Objs. 5.)

In denying Bean's Motions, the Magistrate Judge stated:

Bean has also filed a Motion for Discovery. (ECF No. 24.) Bean seeks

the location of the Pizza Hut from which he and the victim ordered pizza on the

date of the incident; the victim's mother's phone records; Bean's phone number at

the time of the incident; the exact time 911 was called; lab notes created by the

Department of Forensic Science; results of testing of any stains from the victim's

sheets; and the victim's school records. (Id. at 11-12.) Bean contends that he

requires these items so that he can locate evidence to demonstrate that he is

actually innocent of his convictions. (Id. at 12.)

Rule 6(a) of the Rules Governing Section 2254 Cases provides that "[a]

judge may, for good cause, authorize a party to conduct discovery under the

Federal Rules of Civil Procedure. . . ." Rules Governing § 2254 Cases R. 6(a).

Good cause for discovery under Rule 6(a) is shown "where specific allegations

before the court show reason to believe that the petitioner may, if the facts are

fully developed, be able to demonstrate that he is[] entitled to relief." Bracy v.

11

Case 3:16-cv-00803-JAG Document 35 Filed 09/14/17 Page 12 of 12 PagelD# 731

Gramley, 520 U.S. 899, 908-09 (1997) (citation omitted). Rather than providing

specific allegations to suggest that he is entitled to relief, it appears that Bean

desires to engage in a fishing expedition to locate evidence he believes would

support his claim of innocence. Bean therefore fails to demonstrate good cause to

warrant discovery. Accordingly, his Motion for Discovery (ECF No. 24) is

DENIED.

Finally, Bean has filed a Motion to Appoint Counsel to Assist in

Discovery. (ECF No. 25.) No constitutional right to have appointed counsel in

post-conviction proceedings exists. Mackall v. Angelone, 131 F.3d 442, 449 (4th

Cir. 1997). The Court, however, may appoint counsel to a financially eligible

person if justice so requires. See 18 U.S.C. § 3006A(a)(2)(B). Bean fails to

demonstrate that the interests of justice warrant the appointment of counsel at this

juncture. Accordingly, Bean's Motion to Appoint Counsel to Assist in Discovery

(ECF No. 25) is DENIED.

(ECF No. 32, at 2-3.) The Magistrate Judge correctly concluded that Bean failed to provide

specific allegations to suggest that he is entitled to relief and that he failed to demonstrate that

the appointment of counsel was warranted. Accordingly, Bean's final objection will be

OVERRULED.

IV. CONCLUSION

For the foregoing reasons, Bean's objections will be OVERRULED. The Report and

Recommendation (ECF No. 33) will be ACCEPTED and ADOPTED. The Motion to Dismiss

(ECF No. 16) will be GRANTED. Bean's Motions (ECF Nos. 21, 22, 23, 29) will be DENIED.

Bean's § 2254 Petition (ECF No. 3) will be DENIED. Bean's claims and the action will be

DISMISSED. A certificate of appealability will be DENIED.

An appropriate Order will accompany this Memorandum Opinion.

lei

Date: q11 Y/I

Richmond, Virginia

John A. Gibney, Jr.

United States As

12

Case 3:16-cv-00803-JAG Document 33 Filed 07/18/17 Page 1 of 11 PagelD# 699

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

RHETT BEAN,

Petitioner,

Civil Action No. 3:16CV803

V.

,

SUSSEX I STATE PRISON,

Respondent.

REPORT AND RECOMMENDATION

Rhett Bean, a Virginia state prisoner proceeding pro Se, brings this petition pursuant to 28

U.S.C. § 2254 ("s 2254 Petition," ECF No. 3) challenging his convictions in the Circuit Court

for the City of Portsmouth, Virginia ("Circuit Court"). The matter is before the Court for a

Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons that follow, it is

RECOMMENDED that the § 2254 Petition be DENIED as barred by the statute of limitations.

A.

Procedural History and Bean's Claims

Following a bench trial on October 25, 2012, Bean was convicted of one count of rape

and one count of object sexual penetration. (ECF No. 28-1, at 1, 4.) On July 19, 2013, the

Circuit Court entered final judgment and sentenced Bean to seventy-five years of incarceration,

with fifteen years suspended, for rape and seventy-five years of incarceration, with fifteen years

suspended, for object sexual penetration. (Id. at 1-2.) The Circuit Court directed that Bean's

sentences run concurrently. (id. at 1.)

Bean appealed to the Court of Appeals of Virginia, arguing that the evidence was

insufficient to support his convictions. (ECF No. 1—I, at 1.) On December 30, 2013, the Court

Case 3:16-cv-00803-JAG Document 33 Filed 07/18/17 Page 2 of 11 PagelD# 700

of Appeals of Virginia denied Bean's appeal. (Id) With respect to the sufficiency of the

evidence, the Court of Appeals stated:

So viewed, the evidence proved that on October 31, 2011, appellant and

the victim had sexual intercourse. The victim was sixteen years old at the time,

and appellant, a friend of the victim's mother, spent the previous night in the

residence. The victim testified that, in the morning, appellant took her brother to

the bus stop and then returned to the residence. Appellant Went to the victim's

room when the two were alone together, and appellant began saying "nasty

things." The victim testified appellant "just jumped on [her] and he stuck his

fingers into (her] vagina and then he took his fingers out and then he placed his

penis into [her] vagina... ." She described how she attempted to "fight him off'

and explained appellant "pushed [her] chest down very hard" until she "just gave

up from there."

Afterwards, the victim told appellant to call her mother and appellant said

that "something jumped into [him]" and he did not mean to do it. Appellant then

left the residence. A short time later, the victim's mother and an ambulance

arrived. The victim was examined at the hospital.

The victim's mother testified that appellant called her that day and said

that he had "done something really bad." The victim's mother heard her daughter

crying in the background and asked appellant what had happened. Appellant

repeated that he had done something bad and stated she just had to come home.

After the victim's mother took the victim to the hospital, appellant again called

her on the phone. She allowed a police officer to listen to the conversation.

Appellant repeatedly apologized, stated he "want[ed] to make this right," and

offered to give her money and his car. He offered to "pay for [the victim] to go to

therapy for the rest of her life," and begged her not to contact the police.

Appellant admitted having intercourse with the victim, but claimed it was

consensual. He also denied inserting his fingers into her vagina.

Here, the trial court believed the victim's version of the events and

rejected appellant's testimony. The trial court specifically noted that although the

victim's account of the incident was inconsistent in part with earlier accounts, the

victim provided a consistent description of the acts and "explained anything that

has been the least bit different." The court also noted the victim's testimony was

corroborated in part by her mother's testimony and that appellant's statements in

the calls to the victim's mother were "the most incriminating thing in this case

•" In its role of judging witness credibility, the trier of fact is entitled to

disbelieve a defendant's self-serving testimony and conclude that he is lying to

conceal his guilt. Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500

S.E.2d 233, 235 (1998). The victim described "hitting (appellant] with [her] fists,

trying to push him off of [her]" and explained how she resisted appellant,

demonstrating appellant accomplished the unwanted penetration through the use

of force. The record supports the trial court's credibility determination.

2

Case 3:16-cv-00803-JAG Document 33 Filed 07/18/17 Page 3 of 11 PagelD# 701

The Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable doubt that appellant

was guilty of rape and object sexual penetration.

(Id at 1-4 (alterations in original).) On October 6, 2014, the Supreme Court of Virginia refused

Bean's petition for appeal. (Id. at 5.)

On June 15, 2015, Bean filed a petition for a writ of habeas corpus with the Circuit Court.

(ECF No. 28-1, at 4.) On November 25, 2015, the Circuit Court denied Bean's petition. (Id at

18-19.) On July 6, 2016, the Supreme Court of Virginia dismissed Bean's petition for appeal

pursuant to Rule 5:9(a) of the Rules of the Supreme Court of Virginia, concluding that "the

appeal was not perfected in the manner provided by law because (Bean) failed to file the notice

of appeal[.]" (Id at 20.)

Bean dated his initial J 2254 Petition August 15, 2016.' (ECF No. 1, at

5•)2 To the

extent that Bean asserts this is the date he placed his initial § 2254 Petition in the prison mailing

system for mailing to this Court, the Court finds Bean's assertion to be incredible. The envelope

in which Bean mailed his initial § 2254 Petition is postmarked September 16, 2016 (Id at 6), and

the Court did not receive Bean's initial § 2254 Petition until September 19, 2016 (Id. at 2). The

Court believes that Bean mailed his initial § 2254 Petition in September 2016. Nevertheless, as

discussed infra, even using August 15, 2016 as the date when Bean filed his § 2254 Petition, the

§ 2254 Petition is untimely. Thus, the Court utilizes August 15, 2016 as the filed date. See

'Bean did not submit his initial § 2254 Petition on the standardized form used by this Court. By

Memorandum Order entered on October 13, 2016, the Court directed the Clerk to mail the

standardized form to Bean and directed Bean to complete and return the form to the Court within

eleven (Il) days of the date of entry thereof. (ECF No. 2, at 1.) The Court received Bean's

standardized § 2254 Petition on October 21, 2016. (ECF No 3.)

2

The Court utilizes the pagination assigned to Bean's submissions by the CM/ECF docketing

system. The Court corrects the spelling and capitalization in quotations from Bean's

submissions.

3

Case 3:16-cv-00803-JAG Document 33 Filed 07/18/17 Page 4 of 11 PagelD# 702

Houston v. Lack, 487 U.S. 266, 276 (1988). In his § 2254 Petition, Bean asserts the following

claims for relief:

Claim One "Trial counsel provided ineffective assistance of counsel in violation of

the United States 6" Amend Constitution." (§ 2254 Pet. 5.)

Claim Two "The sentencing counsel did [not] bring to the court's attention that I was

6th

convicted without the bill of particulars accompanying the indictment

Amend violation." (Id. at 11.)

Claim Three "Appeal counsel did not raise the fact that the bill of particulars was

omitted from trial no made a record to raise the issues that I was convicted

on an uncharged offense violation of 6th Amend of U.S. Constitution right

to counsel." (Id at 12.)

Claim Four "Insufficient evidence." (Id. at 14.)

B.

Analysis

1.

Statute of Limitations

Respondent contends that the federal statute of limitations bars Bean'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:

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—

the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

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;

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

4

Case 3:16-CV-00803-JAG Document 33 Flied 07/18/17 Page 5 of 11 PagelD# 703

(D)

2.

the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

The time during which a properly filed application for State postconviction 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.

Commencement and Running of the Statute of Limitations

The Supreme Court of Virginia refused Bean's petition for appeal on October 6, 2014.

Bean's convictions became final on Monday, January 5, 2015, when the time to file a petition for

a writ of certiorari expired. See Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) ("[T]he oneyear limitation period begins running when direct review of the state conviction is completed or

when the time for seeking direct review has expired... ." (citing 28 U.S.C. § 2244(d)(1)(A)));

Sup. Ct. R. 13(1) (requiring that a petition for certiorari be filed within ninety days of entry of

judgment by the state court of last resort or of the order denying discretionary review). The

limitation period began to run on January 6, 2015, and 160 days of the limitation period elapsed

before Bean filed his state petition for a writ of habeas corpus on June 15, 2015.

Statutory Tolling

To qualify for statutory tolling, an action must be a (I) properly filed (2) post-conviction

or other collateral review of (3) the pertinent judgment. 28 U.S.C. § 2244(d)(2). "[Am

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 office in which it must be lodged, and the requisite filing fee." Id.

(footnote omitted) (citing cases).

5

Case 3:16-CV-00803-JAG Document 33 Filed 07/18/17 Page 6 of 11 PagelD# 704

For Bean, the limitation period was tolled from June 15, 2015, when Bean filed his state

habeas petition, until November 25, 2015, when the Circuit Court denied his state habeas

petition. Bean lacks entitlement to statutory tolling for the period during which he pursued his

appeal from the denial of his state petition because the Supreme Court of Virginia dismissed the

appeal on the ground that Bean had not timely filed a notice of appeal. See Bolding v. Dep 't of

Corr., No. 3:10CV660, 2011 WL 2471557, at *2 (E.D. Va. June 21, 2011) (citing Rodgers v.

Angelone, 113 F. Supp. 2d 922,929-30 (E.D. Va. 2000)); see Escalante v. Watson, 488 F. App'x

694, 699 (4th Cir. 2012) (refusing to toll limitation period for the time period when the inmate's

defective petition for appeal was pending before the Supreme Court of Virginia). Accordingly,

the limitation period recommenced upon the denial of Bean's state habeas petition by the Circuit

Court on November 25, 2015 and ran for 263 more days, until Bean filed his § 2254 Petition on

August 15, 2016.

Because a total of 423 days ran until Bean filed his § 2254 Petition, the statute of

limitations bars his § 2254 Petition. Bean does not suggest any plausible basis for a belated

commencement of the limitation period under 28 U.S.C. § 2244(d)(1)(B)-(D) or equitable

tolling. Instead, Bean argues that his actual innocence excuses his failure to file in a timely

manner.

4.

Actual Innocence

The Supreme Court has recognized actual innocence as a basis for overcoming the

expiration of 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

6

Case 3:16-cv-00803-JAG Document 33 Filed 07/18/17 Page 7 of 11 PagelD# 705

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 Bean's arguments

under the more lenient standard for gateway actual innocence claims, because subscribing to

Bean's actual innocence claim would permit the Court to consider the merits of his otherwise

time-barred habeas petition.

A gateway claim requires a petitioner to present "new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—

that was not presented at trial." Schiup 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 37Z 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)). Moreover, actual innocence

means factual innocence and not just legal insufficiency. Calderon v. Thompson, 523 U.S. 538,

559 (1998) (citation omitted).

7

Case 3:16-CV-00803-JAG Document 33 Filed 07/18/17 Page 8 of 11 PagelD# 706

Here, Bean's assertion of actual innocence is not coupled with any new evidence of his

actual innocence. Rather, Bean supports his assertion of innocence with the same arguments and

based upon the same testimony that he presented at trial, which is that he had consensual

intercourse with the victim. (Resp. 2, ECF No. 20.) Bean also contends that his conviction is

void "because the bill of particulars statement of facts did not accompany the indictment which

means the reasonable doubt standard was not applied to my specific charges." (§ 2254 Pet. 17;

see Resp. 1-2.) Bean's bare assertion of innocence and his rehashing of his trial testimony and

legal arguments simply fail to excuse the untimeliness of his § 2254 Petition. See Lowe v. Zoo/c,

No. 3:15CV631, 2016 WL 3912035, at *4 (E.D. Va. July 19, 2016 (citing Hill, 2010 WL

5476755, at *5). Accordingly, it is RECOMMENDED that Respondent's Motion to Dismiss

(ECF No. 16) be GRANTED and that Bean's § 2254 Petition be DENIED as barred by the

statute of limitations.

C.

Outstanding Motions

Bean has filed a Motion to Strike Respondent's pleadings, essentially because he

disagrees with various statements made by Respondent. (ECF No. 21.) Under Rule 12(f) of the

Federal Rules of Civil Procedure, a court may "strike from a pleading an insufficient defense or

any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Granting a

motion to strike under Rule 12(f) is within the sound discretion of the Court. See OTSI Corp. v.

Wildflower Intl, Inc., No. l:09cv123, 2009 WL 2160451, at *4 (E.D. Va. July 17, 2009). "To

Bean has also submitted copies of the discovery provided to the defense during his criminal

proceedings. "Some circuits require the petitioner to present newly discovered' evidence as

opposed to evidence that is merely 'newly presented."' Lee v. Johnson, No. 2:10cv122, 2010

WL 3937334, at *5 n.9 (E.D. Va. July 28, 2010); see Royal v. Taylor, 188 F.3d 239, 244 (4th

Cir. 1999) (noting that to demonstrate actual innocence, a petitioner must produce new evidence

that was not available at the time of trial). Here, all the exhibits submitted by Bean are neither

newly discovered nor newly presented, as they existed at the time of Bean's trial in October 2012

and were available for presentation by the defense at that time.

8

Case 3:16-CV-00803-JAG Document 33 Filed 07/18/17 Page 9 of 11 PagelD# 707

grant a Rule 12(f) motion, the court must determine that the challenged allegations are 'so

unrelated to the plaintiff's claims as to be unworthy of any consideration as a defense and that

their presence in the pleading throughout the proceeding will be prejudicial to the moving

party." Grant V. Bank of Am., N.A., No. 2:13—CV-342,2014 WL 792119, at *2 (E.D. Va. Feb.

25, 2014) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure

§ 1380 (2d ed. 1990)). Bean's disagreement with Respondent's statements fails to satisfy his

burden under Rule 12(f). Accordingly, it is RECOMMENDED that Bean's Motion to Strike

(ECF No. 21) be DENIED.

Bean has also filed a Motion for Summary Judgment, arguing that he is actually innocent

of his crimes of conviction. (ECF No. 22.) As discussed supra, the Court has concluded that

Bean's § 2254 Petition is barred by the statute of limitations and that Bean fails to establish that

his alleged actual innocence permits the Court to reach the merits of his time-barred petition.

Accordingly, it is RECOMMENDED that Bean's Motion for Summary Judgment (ECF No. 22)

be DENIED.

Bean has also filed a Motion for Judicial Estoppel, requesting that Respondent be

judicially estopped from "switching up on.. the time frame in which (Respondent) contends a

.

rape & object sexual penetration occurred in this case." (ECF No. 23, at 9.) "Judicial estoppel is

a principle developed to prevent a party from taking a position in a judicial proceeding that is

inconsistent with a stance previously taken in court." Zinkand v. Brown, 478 F.3d 634, 638 (4th

Cir. 2007). The United States Court of Appeals for the Fourth Circuit has stated that:

"Three elements must be satisfied before judicial estoppel will be applied." First,

the party to be estopped must be advocating a position inconsistent with one taken

in prior litigation. "Second, the prior inconsistent position must have been

accepted by the court." Finally, the party against whom judicial estoppel is

asserted must have intentionally misled the court in order to gain unfair

advantage."

9

Case 3:16-cv-00803-JAG Document 33 Filed 07/18/17 Page 10 of 11 PagelD# 708

US. Bank Nat'l Assn v. Zarrabi, 560 F. App'x 181, 182 (4th Cir. 2014) (quoting Zinldand, 478

F.3d at 638) (internal citations omitted). Bean has not demonstrated that Respondent

intentionally misled the Circuit Court in any way. Moreover, the Court has not relied upon any

timeline presented by Respondent in determining that Bean's § 2254 Petition is time-barred.

Accordingly, it is RECOMMENDED that Bean's Motion for Judicial Estoppel (ECF No. 23) be

DENIED.

Finally, Bean has filed a Request for an. Evidentiary Hearing. (ECF No. 29.) The

decision to grant an evidentiary bearing is left to the "sound discretion of district courts."

Schriro v. Landrigan, 550 U.S. 465, 473 (2007). A federal court must consider whether the

evidentiary hearing would provide the petitioner the opportunity to "prove the petition's factual

allegations, which, if true, would entitle the applicant to federal habeas relief." Id. at 474; see

Mayes v. Gibson, 210 F.3d 1284, 1287 (10th Cir. 2000). The court must also consider the

standards prescribed by section 2254 when considering whether an evidentiary hearing is

appropriate. Schriro, 550 U.S. at 474. Here, Bean's § 2254 Petition is time-barred, and Bean

has not presented any evidence to support his gateway claim of actual innocence. Therefore, it is

RECOMMENDED that his Request for an Evidentiary Hearing (ECF No. 29) be DENIED.

D.

Conclusion

For the foregoing reasons, it is RECOMMENDED that the Court GRANT Respondent's

Motion to Dismiss (ECF No. 16) and DISMISS Bean's claims. It is further RECOMMENDED

that Bean's § 2254 Petition (ECF No. 3), Motion to Strike (ECF No. 21), Motion for Summary

Judgment (ECF No. 22), Motion for Judicial Estoppel (ECF No. 23), and Request for a

Evidentiary Hearing (ECF No. 29) be DENIED. It is further RECOMMENDED that the action

be DISMISSED.

10

Case 3:16-cv-00803-JAG Document 33 Filed 07/18/17 Page 11 of 11 PagelD# 709

Bean is advised that he may file specific written objections to the Report and

Recommendation within fourteen (14) days of the date of entry hereof. Such objections should

be numbered and identify with specificity the legal or factual deficiencies of the Magistrate

Judge's findings. See Fed. R. Civ. P. 72(b). Failure to timely file specific objections to the

Report and Recommendation may result in the dismissal of his claims, and it may also preclude

further review or appeal from such judgment. See Carr v. Hutto, 737 F.2d 433 434 (4th Cir.

1984).

The Clerk is DIRECTED to send a copy of the Report and Recommendation to Bean and

counsel of record.

Roderick C. Young

(..'

United States Magistrate Jud/

Date: July j 2017

Richmond, Virginia

11

Additional material

from thiis*fi1ing is

available in the

Clerk's Office.