United States District Court, S.D. West Virginia, Beckley Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. EIFERT UNITED STATES MAGISTRATE JUDGE
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.
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.
Relevant Factual and Procedural History
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).
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).
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).
April 12, 2017,  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).
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.
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).
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