Page v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7660
ANTHONY BERNARD PAGE,
Petitioner – Appellant,
v.
GENE M. JOHNSON,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cv-00719-JCC-JFA)
Submitted: March 3, 2011 Decided: March 18, 2011
Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Anthony Bernard Page, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Bernard Page seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2254 (2006)
petition. In his petition, Page raised claims related to his
1989 conviction for eight counts of robbery as well as claims
related to the subsequent revocation of a suspended sentence
received for one of those robbery convictions. The district
court dismissed petitioner’s claim relating to the revocation of
his suspended sentence because that claim did not present a
federal constitutional claim. * In the same order, the district
court indicated that petitioner’s remaining claims appeared
untimely. In accordance with Hill v. Braxton, 277 F.3d 701, 707
(4th Cir. 2002), the district court informed petitioner that his
remaining claims would be dismissed as untimely unless, within
thirty days, petitioner contested the application of the statute
of limitations or established his entitlement to equitable
tolling. In response, petitioner argued that he was entitled to
equitable tolling because he had been provided with ineffective
assistance of counsel during his 1989 sentencing and because he
had not received a letter indicating his acceptance into a Youth
Challenge parole program until 2010.
*
Petitioner does not address the dismissal of the
revocation challenge on appeal and we accordingly will not
address issues related thereto. See 4th Cir. Loc. R. 34(b).
2
The district court considered petitioner’s arguments
and found them unpersuasive. The court opined that the alleged
ineffective assistance claim did not justify tolling the statute
of limitations for twenty years. Moreover, the court noted that
an attachment to the habeas petition demonstrated petitioner’s
acceptance into the parole program and knowledge of that
acceptance before sentencing. Concluding that petitioner had
not established his entitlement to equitable tolling, the
district court dismissed the claims as barred by the statute of
limitations. The district court expressly denied to issue a
certificate of appealability.
The district court’s order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
See 28 U.S.C. § 2253(c)(1) (2006). 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)
(2006). When the district court denies relief on procedural
grounds without reaching the merits of the underlying
constitutional claims, 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. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000).
3
We have independently reviewed the record and conclude
that Page has not made the requisite showing. “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. § 2244(d)(1). The one-year period
begins on the latest of four dates:
(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 prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court, if the
right has been newly 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.
Id. In this case, the one-year period began on May
21, 1989, when the time for seeking review of petitioner’s
sentence expired. See Virginia Supreme Court Rule 5:9(a).
Petitioner did not file his habeas petition until June 20, 2010.
4
We agree with the district court’s assessment of petitioner’s
arguments for equitable tolling and conclude that no reasonable
jurist could find the correctness of the district court’s
procedural ruling debatable.
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 the court and argument would not aid the
decisional process.
DISMISSED
5