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Riley v. Vest

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

January 5, 2018

KENNETH LEE RILEY, Petitioner,
v.
WILLIAM J. VEST, Warden, Beckley Correctional Center, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          CHERYL A. EIFERT UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are Petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (ECF No. 1), and Respondent's Motion to Dismiss, (ECF No. 9). This case is assigned to the Honorable Irene C. Berger, United States District Judge, and by standing order is referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

         The undersigned notes that the record before the Court is well-developed and provides a sufficient basis upon which to resolve this matter without need for an evidentiary hearing. See Rule 8, Rules Governing Section 2254 Cases. Having thoroughly reviewed and considered the record, the undersigned FINDS that Petitioner's § 2254 petition is untimely under the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, the undersigned respectfully RECOMMENDS that the presiding District Judge GRANT Respondent's Motion to Dismiss, (ECF No. 9); DENY Petitioner's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (ECF No. 1); and DISMISS this case from the docket of the Court.

         I. Relevant Factual and Procedural History

         In 1998, Petitioner and two other state prisoners were indicted in the Circuit Court of Randolph County, West Virginia (the “Circuit Court”) for conspiring to deliver marijuana to the state correctional facility in which they were incarcerated. (ECF No. 9-2 at 8-9). Pursuant to a plea agreement, Petitioner pleaded guilty to three of the five counts in the indictment, including the charges of attempted delivery of a controlled substance to an inmate, conspiracy, and possession with intent to deliver a controlled substance. (ECF No. 9-2 at 11-15, 17, 33-34). In exchange for Petitioner's guilty plea, the government agreed to recommend that Petitioner's sentences for the three charges be served concurrently. (Id. at 11).

         On March 29, 1999, the Circuit Court sentenced Petitioner to three consecutive terms of one to five years in prison. (ECF No. 9-2 at 46-47). Thus, on June 28, 1999, Petitioner moved to reduce his sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure, asking the Circuit Court to consider running his three sentences concurrently. (Id. at 51-52, 60). The government responded that it believed that the sentences were appropriate and the Circuit Court denied Petitioner's Rule 35(b) motion by order entered on September 1, 1999. (Id. at 62-63, 67-68). Petitioner filed another Rule 35(b) motion on March 31, 2010, which the Circuit Court denied as untimely on April 9, 2010. (Id. at 70-71, 83). Petitioner then filed a motion under Rule 35(a) of the West Virginia Rules of Criminal Procedure on June 22, 2010, which the Circuit Court denied on August 17, 2010. (Id. at 85-87, 108).

         Thereafter, on November 7, 2012, Petitioner filed a petition for writ of habeas corpus in the Circuit Court. (ECF No. 9-3 at 35). The circuit court considered Petitioner's asserted grounds, including his argument that the government did not fulfill its obligation to recommend concurrent sentences, ineffective assistance of counsel, erroneous information in the presentence report, and his argument that he received an excessive sentence, but the Circuit Court ultimately denied the habeas petition on August 7, 2015. (ECF No. 9-3 at 345-69). Petitioner appealed the denial of his state habeas petition to the Supreme Court of Appeals of West Virginia (“SCAWV”), which affirmed the Circuit Court's ruling by decision dated April 12, 2016 and final mandate entered on May 13, 2016. (ECF No. 9-3 at 414, 415-18).

         On April 12, 2017, [1] Petitioner filed the instant federal habeas petition asserting that he was wrongfully convicted of the crimes of possession with intent to deliver a controlled substance and delivery of a controlled substance because the marijuana which he conspired to be delivered to the prison was intercepted by authorities before it ever reached him. (ECF Nos. 1, 15). He argues that his counsel was ineffective for allowing him to plead guilty to such charges; the prosecutor breached the plea agreement by recommending consecutive sentences; he received consecutive sentences for crimes that he could not have committed and were within the same transaction; and a factual basis was not provided for his guilty plea. (ECF No. 1 at 6-8). Petitioner asks for the Court to vacate his convictions or order that the sentences run concurrently. (Id. at 8).

         Upon reviewing the petition, the undersigned entered an order advising that although Petitioner completed the 28 U.S.C. § 2241 form, his claims should have been filed pursuant to 28 U.S.C. § 2254 because they challenge the validity of his state convictions and sentences. (ECF No. 5). The undersigned further ordered Respondent to show cause, if any, why the relief sought in the petition should not be granted. (Id.).

         Respondent filed a motion to dismiss, asserting that the habeas petition is untimely under the AEDPA. (ECF Nos. 9, 10). Respondent contends that the statute of limitations within which Petitioner could challenge his 1998 convictions expired on January 1, 2001; consequently, he is barred from filing a federal habeas action in 2017. (ECF No. 10 at 14). In response, Petitioner argues that the AEDPA period did not begin to run until he “exhausted his state remedies, ” claiming that his federal petition is timely because it was filed within one year of the SCAWV's adjudication of his state habeas petition. (ECF No. 15 at 2).

         II. Discussion

         The Fourth Circuit has explained that the AEDPA “imposed a new, one-year statute of limitations on petitions brought by state prisoners for a federal writ of habeas corpus.” Crawley v. Catoe, 257 F.3d 395, 398 (4th Cir. 2001) (citing 28 U.S.C. § 2244(d)). The one-year limitation period begins to run from the latest of:

(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;
(B) 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 ...

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