Petition for Writ of Certiorari — Antwon Whitten, Petitioner v. Harold W. Clarke, Director, Virginia Department of Corrections

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-6540

ANTWON WHITTEN,

Petitioner - Appellant,

v.

HAROLD W. CLARKE, Director, Virginia Department of Corrections,

Respondent - Appellee.

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

Norfolk. Lawrence Richard Leonard, Magistrate Judge. (2:20-cv-00570-LRL)

Submitted: December 20, 2022

Decided: December 22, 2022

Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit

Judge.

Dismissed by unpublished per curiam opinion.

Antwon Whitten, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Antwon Whitten seeks to appeal the magistrate judge’s order dismissing as untimely

his 28 U.S.C. § 2254 petition.* See Gonzalez v. Thaler, 565 U.S. 134, 148 & n.9 (2012)

(explaining that § 2254 petitions are subject to one-year statute of limitations, running from

latest of four commencement dates enumerated in 28 U.S.C. § 2244(d)(1)). The order is

not appealable unless a circuit justice or judge issues a certificate of appealability. 28

U.S.C. § 2253(c)(1)(A). 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). When, as here,

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. Gonzalez, 565 U.S. at 140-41 (citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

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

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

* The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C.

§ 636(c).

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

ANTWON GAIRRIO WHITTEN,

Petitioner,

Civil Action No. 2:20-cv-570

v.

HAROLD W. CLARKE, Director,

Virginia Department of Corrections,

Respondent.

OPINION AND ORDER

This matter is before the Court on pro se Petitioner Antwon Gairrio Whitten’s

(“Petitioner”) Amended Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254

(“the Petition”), ECF No. 8, and Respondent Harold W. Clarke’s (“Respondent”) Motion to

Dismiss, ECF No. 22. Petitioner consented to magistrate judge jurisdiction on May 11,2021, ECF

No. 20, and Respondent Harold W. Clarke (“Respondent”) consented on May 21,2021, ECF No.

26. Accordingly, this case was referred to the undersigned United States Magistrate Judge (“the

undersigned”) pursuant to an Order of the United States District Judge, ECF No. 27, and the case

was reassigned. For the following reasons, Respondent’s Motion to Dismiss, ECF No. 22, is

GRANTED, and the Petition, ECF No. 8, is DENIED and DISMISSED WITH PREJUDICE.

I. PROCEDURAL BACKGROUND

On June 2, 2005, the Circuit Court for Stafford County (“the Trial Court”) convicted

Petitioner, following a jury trial, of one count of capital murder and one count of robbery, and

sentenced Petitioner to two life sentences for these charges. ECF No. 24, attach. 1 at 1; ECF No.

8 at 5.

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The evidence showed that on July 14, 2003, while Crystal Jacobs (“the victim”) was

closing the post office inside the Earl’s True Value Hardware store where she worked, Petitioner

stabbed her 16 times and stole cash amounting to $1,845.97 and a package containing a watch

owned by Susan Ware. ECF No. 24, attach. 2, at 1-2. During the victim’s autopsy, the medical

examiner found genetic material under the victim’s fingernails that matched Petitioner’s DNA. Id.

at 2. Police executed a search warrant at Petitioner’s apartment and found the stolen watch and a

shoe with a bloodstain on the sole. Id. DNA from that bloodstain matched the victim’s DNA. Id.

Petitioner appealed his conviction to the Court of Appeals of Virginia. ECF No. 24, attach.

2. The Court of Appeals dismissed his appeal on July 26, 2006 on the grounds that the evidence

was sufficient to prove Petitioner guilty beyond a reasonable doubt of capital murder and robbery.

Id. at 1,4. Petitioner appealed that decision, and the Supreme Court of Virginia refused the petition

on January 4,2007. ECF No. 24, attach. 3.

Twelve years later Petitioner filed a Petition for a Writ of Habeas Corpus in the Circuit

Court of Stafford County (“the Habeas Court”) on January 22, 2019. ECF No. 24, attach. 4 at 2.

As explained by the Habeas Court, Petitioner alleged the following claims:

(1) This Court was without subject matter jurisdiction to enter his conviction and

sentencing orders, rendering them void.

(A)The Stafford County Circuit Court failed to prove that the July 14,2003

crimes related to this claim took place in the Commonwealth of

Virginia. No street address, town, city was used in the indictment,

information, or presentments.

(B)The mere fact that Stafford County Sherriffs Office initiated the

investigation of the crime does not give a persuasive argument that the

crime took place in Stafford County or Virginia.

(C)This Court did not take judicial notice of the crime scene’s location as

being in Virginia.

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(D)The probable cause affidavits supporting Whitten’s arrest warrants are

not on file with the court, negating] subject matter jurisdiction as this

Court seized [Whitten] without probable cause or due process of law.

(2) Whitten’s conviction and sentence were procured by fraud on this Court,

committed by judges of this Court, prosecutors, law enforcement, and his

defense team. Specifically, Whitten claims that this conspiracy defrauded him

by concealing die address of the site of his crimes, which he alleges are in

Fredericksburg as opposed to Stafford County.

(3) Whitten’s attorneys, Paul Maslakowski and Allen Bareford, provided

ineffective assistance of counsel by:

(A)[C]onceal[ing] the true jurisdiction of the crime scene and failing to

demonstrate that it was outside the jurisdiction of this Court;

(B) Failing to call the defense DNA expert to testify; and

(C) Failing to challenge the indictments as insufficient.

ECF No. 24, attach. 4 at 2-3 (internal citations and quotations omitted). On April 25, 2019, the

Habeas Court issued a final order denying and dismissing the habeas petition as untimely. Id. at

6-12. The Habeas Court found that Petitioner’s claims were without merit, and therefore his

eleven-year delay in bringing his habeas petition was not excusable. Id. at 10.

Petitioner appealed the Habeas Court’s order to the Supreme Court of Virginia on

November 14,2019. ECF No. 24, attach. 6. Though Petitioner’s claims are difficult to interpret,

the Court interprets Petitioner’s claims as follows:

1. The habeas court erred in finding that the trial court had subject matter jurisdiction

to enter convictions and sentencing orders, thus voiding the judgment.

2. The Trial Court failed to prove that the crimes took place in the Commonwealth of

Virginia.

3. The Trial Court did not take judicial notice of the crime scene being in Virginia.

4. Affidavits for Whitten’s arrest were never filed with the Trial Court; thus, he was

seized without probable cause.

5. The habeas court erred in not addressing the issue of the probable cause affidavits

for his arrest.

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6. The habeas court erred in finding that the petition was time-barred.

7. The Court of Appeals order denying Petitioner’s petition for appeal from July 26,

2006 was in error, as was the Supreme Court’s refusal of the petition for appeal on

January 4,2007.

8. The habeas court erred in finding that there was no fraud upon the court and no

injury to Petitioner

9. Assistant Commonwealth’s Attorneys participated in committing fraud upon the

court by eliciting false testimony from witnesses.

10. Detectives submitted misleading information about the address of the crime scene

to the magistrate judge.

11. Trial counsel for Petitioner failed to stop the fraud upon the court, despite having

the knowledge and information to do so.

12. The Trial Court participated in the conspiracy to defraud the court.

13. The habeas court erred in denying Petitioner’s habeas petition.

14. The habeas court erred in finding there was no ineffective assistance of counsel.

15. Petitioner’s trial counsel was ineffective for failing to call the DNA expert to testify.

16. The habeas court’s ruling is plain error.

17. The rulings of the appellate courts below are all void for lack of subject matter

jurisdiction.

Id. On March 20,2020, the Supreme Court of Virginia dismissed in part, and refused in part the

petition for appeal. ECF No. 24, attach 7. The Supreme Court of Virginia dismissed Petitioner’s

third assignment of error, and refused Petitioner’s remaining assignments of error. Id.

Petitioner then filed a petition for writ of certiorari to the United States Supreme Court,

which was denied on October 5,2020. Whitten v. Clarke, 141 S. Ct. 396 (2020).

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Petitioner filed a petition for habeas corpus pursuant to Section 2254 in this Court on

October 23,2020,' HCF No. 1, and an Amended Petition, ECF No. 8, on November 26,2020. In

the Amended Petition, he alleges the following:

1. The trial court did not have subject matter jurisdiction over the case, and as such the

conviction and sentencing orders are void. ECF No. 8 at 24. Relatedly, Petitioner alleges

that:

a. The trial court failed to take judicial notice of the location of the crime scene. ECF

No. 8 at 24,26.

b. The location of the crimes was never stated at pretrial or trial. ECF No. 8 at 26.

c. Petitioner was seized without probable cause, and no probable cause hearing was

held, so the trial court did not have jurisdiction over the case. ECF No. 8at21,32,

60.

2. Officers of the court, including the judge, prosecutors, law enforcement, and Petitioner’s

defense team, conspired to commit fraud upon the trial court by intentionally concealing

the “true” jurisdiction of the crimes in order to “take unlawful jurisdiction.” ECF No. 8 at

35, 37.

3. Petitioner’s trial attorneys provided ineffective assistance of counsel by:

a. Participating in fraud upon the court by helping to conceal the true location of the

crimes. ECF No. 8 at 53.

b. Failing to call the defense DNA expert to testify. ECF No. 8 at 54.

c. Failing to address the issue before trial of whether there was probable cause for

Petitioner’s arrest, or the search and seizure of evidence in his apartment. ECF No.

8 at 60.

d. Failing to challenge the indictments as insufficient. ECF No. 8 at 63.

4. The habeas court should have ordered an evidentiary hearing. ECF No. 8 at 29,59.

5. The habeas court failed to rule on the merits of all the claims. ECF No. 8 at 54-55.

i

Petitioner certified that his Petition was placed in the prison mailing system on October 23, 2020. ECF

No. 1 at S. The Petition was stamped as “received” in the Eastern District of Virginia, Alexandria Division

on October 27,2020, Id. at 6. The undersigned affords Petitioner the benefit of the “prison mailbox rule,”

which deems prisoner court filings to be “filed” as of the date that the documents are given to prison

authorities for mailing—here, October 27,2020. See Houston v. Lack, 487 U.S. 266,276 (1988) and Rule

3(d) of the Rules Governing Section 2254 Cases in the United States District Courts.

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6. The Supreme Court of Virginia should have ordered an evidentiary hearing. ECF No. 8 at

32,59.

7. The Supreme Court of Virginia failed to rule on the merits all of Petitioner’s claims. ECF

No. 8 at 25,27.

8. Petitioner did not receive a fair hearing on his state habeas petition because he was not

appointed counsel. ECF No. 8 at 52-53.

The Respondent filed a Motion to Dismiss, a Rule 5 Answer, a Brief in Support of Motion to

Dismiss and Rule 5 Answer, and a Roseboro Notice. ECF Nos. 22-25. Petitioner filed a Response

to the Motion to Dismiss. ECF No. 29. Therefore, the Petition and Motion to Dismiss are now

ripe for disposition.

II. ANALYSIS

Before considering the merits of a federal habeas petition, the preliminary inquiry must be

whether Petitioner’s federal habeas petition was timely or may be excused for untimely filing

under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”). If a petition is time barred

by the AEDPA, the Court need not consider its merits. See Carey v. Saffold, 536 U.S. 214,22526.

A. Timeliness

“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.” 28 U.S.C. § 2244(d)(1).

Compliance with the statute of limitations must account for both statutory and equitable tolling.

See id; Holland v. Florida, 560 U.S. 631, 649 (2010).

Statutory tolling determines that the one-year statute of limitations runs from the latest of

the following:

(A) the date on which the judgment became final by the conclusion of direct review

or the expiration of the time for seeking such review;

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(B) the date on which the impediment to filing an application created by State action

in violation of the Constitution or law of the United States is removed, if the

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by

the Supreme Court and made retroactively applicable to cases on collateral review;

or

(D) the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Additionally, “the time during which a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. §

2244(d)(2). Therefore, Section 2254 petitions such as the instant Petition are subject to a one-year

statute of limitations under the AEDPA and must be dismissed if they are filed later than one year

after the expiration of the time to seek direct review of the highest state court’s decision by the

Supreme Court of the United States. See 28 U.S.C. § 2244(d)(1)(A).

In the instant matter, given the aforementioned procedural background of this case, the

relevant date of finality is April 5,2008. Petitioner’s petition for direct appeal was denied by the

Supreme Court of Virginia on January 4,2007. ECF No. 24, attach. 3. Petitioner had ninety days

to seek a writ of certiorari to the Supreme Court of the United States, but did not do so. Sup. Ct.

R. 13. Accordingly, his conviction became final on April 4,2007. See 28 U.S.C. § 2244(d)(1)(A).

Given the date of finality, the one-year statute of limitations to file a federal habeas petition expired

on April 5,2008. Petitioner did not file the instant Petition until October 23,2020, ECF No. 1 at

5, which is twelve years, six months, and eighteen days after the statute of limitations expired.

Therefore, unless Petitioner is entitled to tolling based on the relevant provisions of 28 U.S.C. §

2244 permitting statutory and equitable tolling, his current Petition is barred by the federal habeas

corpus statute of limitations.

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/. Statutory Tolling

Section 2244(d)(2) of the AEDPA provides for tolling of the federal one-year statute of

limitations during the pendency of a “properly filed1’ state habeas petition. See 28 U.S.C. §

2244(d)(2) (“The time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.”). Petitioner filed a state habeas petition on

January 22, 2019, ECF No. 24, attach. 4, well over a year after his conviction had become final.

Notably, Petitioner does not allege any state-created impediment that prevented timely filing, nor

does he allege additional facts that would warrant additional statutory toiling. Therefore, the Court

FINDS that the benefits of statutory tolling are unavailable to Petitioner.

2. Equitable Tolling

A petitioner is entitled to equitable tolling of the federal habeas statute of limitations where

he demonstrates ‘“(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 560 U.S. at

649 (quoting Pace v. DiGuglielmo, 554 U.S. 408,418 (2005)). Equitable tolling is only available

in “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.” Spencer v. Sutton, 239 F.3d 626,630 (4th Cir. 2001) (quoting Harris v. Hutchinson,

209 F.3d 325, 330 (4th Cir. 2000)). The petitioner “bears the burden of demonstrating that he is

entitled to equitable tolling.” Vroman v. Brigano, 346 F.3d 598,604 (6th Cir. 2003). “In addition,

the petitioner must ‘demonstrate a causal relationship between the extraordinary circumstance on

which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot

be made if the petitioner, acting with reasonable diligence, could have filed on time

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notwithstanding the circumstances.’” Rashid v. Clarke, No. I:18CV262, 2018 WL 1937349, at

*3 (E.D. Va. Apr. 24,2018) (quoting Valverde v. Stinson, 224 F.3d 129,134 (2d Cir. 2000)).

Petitioner states that the reason for his untimely filing is because of the “intentional

concealment” of the address where the crimes took place by the officers of the court. EOF No. 8

at 38-39. Petitioner explains that this conspiracy kept him from pursuing this claim previously

because he was unaware of any “defects” in the jurisdiction of the Trial Court. Id. at 37,39. The

Trial Court found, however, that the address where the crimes took place was elicited at trial and

was located in Stafford County, contrary to Petitioner’s claims of conspiracy and concealment.

ECF No. 24, attach. 4 at 6.

Petitioner has failed to demonstrate any extraordinary circumstances which prevented the

timely filing of the instant petition. “Even in the case of an unrepresented prisoner alleging a lack

of legal knowledge or legal resources,” ignorance of the law is not a basis for equitable tolling.

United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Further, a petitioner’s ignorance of the

law is “neither extraordinary nor a circumstance external to his control.” Id. Thus, even if the

undersigned were to find that Petitioner has pursued his rights diligently—the twelve-year delay

in filing this Petition suggests that he has not—Petitioner has not demonstrated that some external

extraordinary circumstance stood in his way and prevented timely filing. See Holland, 560 U.S.

at 649. Thus, the Court FINDS that Petitioner is not entitled to equitable tolling.

3. Evidence ofActual Innocence

A petitioner may still overcome a time-bar if the petitioner makes “a convincing showing

of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). To make a successful

actual innocence claim, the petitioner must present new, reliable evidence, which is sufficient to

convince the court that no reasonable juror could have found the petitioner guilty beyond a

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reasonable doubt. Id (citing Schulp v. Delo, 513 U.S. 298, 329 (1995)). Evidence which merely

impeaches a government witness or adds support to a theory already presented at trial is

insufficient to meet the actual innocence standard. See Calderon v. Thompson, 523 U.S. 538,56263 (1998). In the instant Petition, Petitioner does not put forward any claim of actual innocence

or any new reliable evidence to support a claim of actual innocence. Without presenting “new

reliable evidence,” Petitioner cannot establish that “it is more likely than not that no reasonable

juror would have found [him] guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327.

Therefore, Petitioner has provided insufficient evidence of actual innocence and has not overcome

the time-bar on his Petition.

Therefore, as Petitioner is not entitled to statutory or equitable tolling, the instant Petition

is time barred by the federal habeas corpus statute of limitations, Section 2244(d)(1) of the

AEDPA.

III. CONCLUSION

For these reasons, the Court FINDS that Petitioner did not timely file the instant Petition.

Therefore, Respondent’s Motion to Dismiss, ECF No. 22, is GRANTED, and Petitioner’s

Amended Petition, ECF No. 8, is DENIED and DISMISSED WITH PREJUDICE. It is

ORDERED that judgment be entered in favor of the Respondent.

The Petitioner is hereby notified that he may appeal from the judgment entered pursuant to

this Final Order by filing a written notice of appeal with the Clerk of the Court at the Walter E.

Hoffman United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within thirty (30)

days from the date judgment is entered. Because the Petitioner has failed to demonstrate a

substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) and

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Federal Rule of Appellate Procedure 22(b)(1), the Court declines to issue a certificate of

appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).

The Clerk is DIRECTED to forward a copy of this Order to Petitioner and to counsel for

Respondent.

It is so ORDERED.

At

Lawrence R. Leonard

United States Magistrate Judge

Lawrence R. Leonard

United States Magistrate Judge

Norfolk, Virginia

March 24,2022

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Additional material

from this filing is

available in the

Clerk's Office.