Heilbrun v. Johnson, No. 2:2010cv00070 - Document 20 (E.D. Va. 2010)
Court Description: FINAL ORDER adopting and approving the findings and recommendations set forth in 18 Report and Recommendation; denying and dismissing the petition; directing that judgment be entered in favor of respondent; declining to issue certificate of appealability; noting appeal procedures. Signed by District Judge Rebecca Beach Smith and filed on 7/22/10. ECF to counsel, copy mailed to petitioner 7/22/10.(mwin, )
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Heilbrun v. Johnson Doc. 20 FILED UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OP VIRGINIA JUL 2 2 2010 Norfolk Division WAYNE REED HEILBRUN, Ci !-' ;*. v:~ CiS • ^ :cri u #1157243, Petitioner, V" ACTION NO. 2:10cv7 0 GENE JOHNSON, Director, Department of Corrections, Respondent. FINAL This matter was corpus under 28 initiated by petition for writ of habeas U.S.C. proceeding pro se, ORDRR § Virginia inmate filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 2254. Petitioner, a The petition challenged his December 7, 2006 convictions, by the Circuit Court for the City of Virginia Beach, for stalking, trespassing, and three counts of destruction of property. The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(l)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for a report and recommendation. The Report and Recommendation filed June 21, 2010, recommends dismissal of the petition. Each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. On July 9, 2010, the Court received Petitioner's Objections to the Report and Recommendation. Dockets.Justia.com Petitioner raises two substantive objections in his nine enumerated paragraphs. First, Petitioner claims that the Report and Recommendation improperly relied on determining that limitations. his claim was (ObJ. at 2-3.) 28 U.S.C. § 2244 when barred by the statute of Petitioner argues that because he filed his habeas petition under 28 D.S.C. S 2254, that S 2244 is inapplicable. (Ob:. at 2-3.) Such an assertion is contrary to the plain language o£ the statute which states, -[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.A. S 2244(d)(1)(2010). Petitioner is a person in custody pursuant to the judgment of a state court petitioning for a writ of habeas corpus. Thus, the one-year statute of limitations outlined in 28 U.S.C. § 2244(d)(l) applies. Second, in a series of statements regarding exhaustion and collateral review, Petitioner appears to make the argument that the filing of his state habeas petition on December 9, 2008 tolled the one-year statute of limitations 2244(d)(1). (Obj. at 4.) set forth in 28 U.S.C. § Petitioner is correct in noting that the law allows the federal statute of limitations to be tolled during the time in which -a properly filed application for State post-conviction or other collateral review ... is pending . . . .- 28 U.S.C.A. § 2244(d)(2)(2010). However, as the Report and Recommendation illuminated, Petitioner's state habeas petition was not filed until eleven months after limitations had already elapsed. the federal statute of Merely having the possibility to file in state court for collateral review does not toll the oneyear statute of limitations. To toll the statute of limitations, a properly filed State habeas petition must be pendinq. 28 U.S.C. § 2244{d){2) 1381 (emphasis added); see Moore v. Crosby, 321 F.3d 1377, (11th Cir. 2003) (holding that Ma] state application filed after expiration of the limitations period does not relate back so as to toll idle petition. . U.S.C. 2244(d)(2)] § . . periods preceding [i]n other words, does not the filing of the federal the tolling provision operate to revive limitations period if such period has expired."). the [of 28 one-year Petitioner did not file for any collateral review- state or federal- within the one-year statute of limitations. Thus, it was never tolled, and record the Petitioner's claims are time-barred. The Court, having reviewed the and examined objections filed by Petitioner to the Report and Recommendation, and having made de novo objected to, does findings with respect hereby adopt and approve to the portions the findings and recommendations set forth in the Report and Recommendation filed June 21, 2010. It is, DENIED and DISMISSED. entered in favor of therefore, It is ORDERED that the petition be further ORDERED that judgment be Respondent. Petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right," therefore, the Court declines to issue any certificate of appealability pursuant to Rule 22(b) v. of the Federal Rules of Appellate Procedure. Cockrell. 123 Petitioner S.Ct. is 1029, hereby judgment entered pursuant notice of Courthouse, days appeal with 1039 (2003). notified that he may appeal from the to this Final Order by filing a written the Clerk 600 Granby Street, from the date of See Miller-El of Norfolk, entry of this court, United Virginia 23510, States within 30 such judgment. The Clerk shall mail a copy of this Final Order to Petitioner and counsel of record for Respondent. Rebccca Reach Smith" United States District Judge UNITED STATES Norfolk, July Virginia Q^ , 2010 DISTRICT JUDGE
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