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Walton v. Ballard

United States District Court, S.D. West Virginia, Charleston Division

March 24, 2017

TONY J. WALTON, Petitioner,
DAVID BALLARD, Warden Respondent.



         Pending before the Court are Tony J. Walton's (“Petitioner”) petition pursuant to 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“§ 2254 Petition”), (ECF No. 1), Respondent's Motion to Dismiss the Petition as Untimely (ECF No. 11), Petitioner's Motion for Partial Summary Judgment (ECF No. 16), and Petitioner's Motion for Post-Conviction Bond (ECF No. 23). On July 22, 2015, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed findings and recommendations for disposition (“PF&R”). (ECF No. 3). On January 25, 2016, Magistrate Judge Eifert filed her PF&R (ECF No. 24), recommending that this Court grant the Motion to Dismiss, deny the Motion for Partial Summary Judgment, deny the Motion for Post-Conviction Bond, and deny and dismiss the § 2254 Petition.[1] Objections to the PF&R were due by February 11, 2016, and Petitioner timely filed objections on February 8, 2016 (“Objections”). (ECF No. 25.)

         For the reasons discussed herein, the Court SUSTAINS the Objections, DECLINES TO ADOPT the PF&R, DENIES the Motion to Dismiss, DENIES WITHOUT PREJUDICE the Motion for Partial Summary Judgment, DENIES the Motion for Post-Conviction Bond, and RE-REFERS this matter to the Magistrate Judge for further submission of proposed findings and recommendations for disposition.

         I. BACKGROUND

         On December 11, 2009, Petitioner was found guilty of one count of first-degree robbery and one count of assault during the commission of a felony after a jury trial in the Circuit Court of Fayette County, West Virginia. (ECF No. 13-1 at 384.) On January 26, 2010, Petitioner was sentenced to 50 years' imprisonment for the robbery and 2 to 10 years' imprisonment for the assault. (ECF No. 13-2 at 24.) On March 26, 2010, Petitioner, by counsel, filed a Motion for Discretionary Reconsideration of his fifty-year sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure. (ECF No. 21-1 at 2.) The circuit court denied this motion on March 30, 2010. (ECF No. 21-2 at 2.) Petitioner filed a direct appeal with the Supreme Court of Appeals of West Virginia (“WVSCA”) on June 14, 2010, and the WVSCA denied his appeal by an order entered September 22, 2010. (ECF No. 13-5 at 2.) As Petitioner did not seek a writ of certiorari before the United States Supreme Court within 90 days, the state court decision became final on December 22, 2010, the first day after the expiration of his opportunity to seek United States Supreme Court review. Sup. Ct. R. 13.1.

         On August 17, 2011, [2] Petitioner filed a pro se motion “pursuant to rule 35 a of West Virginia Rules of Criminal Procedure” with the Circuit Court of Fayette County (“Rule 35 Motion”), asking for a reduction or modification of his sentence. (ECF No. 21-3, at 2.) The circuit court never issued a ruling on this motion. (ECF No. 15-1 at 7.)

         On June 18, 2012, Petitioner, through counsel, filed a state habeas petition directly with the WVSCA, which the WVSCA dismissed on September 20, 2012, without prejudice to Petitioner's ability to re-file in circuit court. (ECF No. 13-6 at 2.) Petitioner re-filed this petition in the Circuit Court of Fayette County, West Virginia, on October 29, 2012, and that court denied and dismissed the petition on February 3, 2014. (ECF No. 13 at 2, 78.) Petitioner appealed this decision to the WVSCA, which denied the appeal in a memorandum decision on February 9, 2015. (ECF No. 13-8 at 2-3.)

         Petitioner then filed his § 2254 petition with this Court on July 22, 2015. Respondent filed an answer and the Motion to Dismiss on October 15, 2015. Magistrate Judge Eifert filed the PF&R on January 25, 2016, recommending dismissal on the ground that the § 2254 Petition was untimely. Petitioner timely filed his Objections on February 8, 2016.


         The Federal Magistrates Act requires the district court to make a de novo review upon the record of any portion of the proposed findings and recommendations to which written objections have been made. 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Conversely, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendations to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50, (1985). In reviewing those portions of the PF&R to which Petitioner objected, this Court will consider the fact that Petitioner is acting pro se, and his filings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).


         Petitioner objects to Magistrate Judge Eifert's proposed finding that the § 2254 Petition was untimely. His objection is based only on the argument that his Rule 35 Motion, which remains pending, tolled § 2244's limitations period, making the § 2254 Petition timely when filed on July 22, 2015. Based on the Court's interpretation of that motion, the Court finds that dismissal of the § 2254 Petition is improper and re-referral to Magistrate Judge Eifert is appropriate.

         Under AEDPA, persons in state custody face a one-year statute of limitations for filing federal habeas petitions. 28 U.S.C. § 2244(d)(1). Though this statute provides four possible dates upon which this period can begin to run, in this case the PF&R determined, without objection, that § 2244(d)(1)(A) controls and the one-year period began to run on the date Petitioner's state judgment became final upon the expiration of time for seeking direct review. (ECF No. 24 at 14-16.) Because Petitioner's direct appeal was denied by the WVSCA on September 22, 2010, Petitioner's one-year limitations period started to run on December 22, 2010, when his state court judgment became final.[3] However, AEDPA also provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

         The United States Supreme Court has defined “collateral review” broadly for the purposes of AEDPA tolling as “a judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.” Wall v. Kholi, 562 U.S. 545, 553 (2011). The Court found in that case that a motion to reduce a sentence made under Rhode Island's Rule 35 of Criminal Procedure qualified as “collateral review” for the purposes of § 2244.[4]See Id. at 553-56. The Supreme Court determined that such an application is “properly filed” when “its delivery and acceptance are in compliance with the applicable laws and rules governing filing.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). The Court noted that these rules for filing an application include “the time limits upon its delivery.” Id. The Court distinguished conditions to filing, such as time limits, from “condition[s] to obtaining relief, ” such as procedural bars to the actual claims in the application. Id. at 8-11; see also Harris v. Dir., Virginia Dep't of Corr., 282 F.App'x 239, 242 (4th Cir. ...

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