United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Preston Pearson, proceeding pro se, filed the
instant petition for a writ of habeas corpus on April 4,
2016. Dkt. 1. In a previous opinion, this Court dismissed
most of his claims for lack of jurisdiction. Dkt. 5 at 1, 3.
The matter is now before the Court on Petitioner's only
remaining claim: ineffective assistance of appellate counsel.
The Court concludes that it need not reach the merits of this
claim because the petition is untimely under the
Antiterrorism and Effective Death Penalty of 1996
(“AEDPA”), 28 U.S.C. § 2244(d)(1). The Court
will, accordingly, deny the petition and dismiss this case.
April 2009, a District of Columbia Superior Court jury
convicted Petitioner of “voluntary manslaughter while
armed in connection with the stabbing death of John
Whicker.” Dkt. 26 at 13. Petitioner was sentenced to
120 months of imprisonment and five years of supervised
release. Id. at 3. He appealed the conviction, and,
while his direct appeal was pending, sought collateral relief
under D.C. Code § 23-110, claiming “actual
innocence, miscarriage of justice, ineffective assistance,
exculpatory evidence, prosecutorial misconduct, etc.”
Dkt. 1 at 2; Dkt. 5 at 1. The District of Columbia Superior
Court rejected both his direct and collateral challenges to
the conviction, and the Court of Appeals for the District of
Columbia affirmed those judgments on December 7, 2012, in a
consolidated appeal. Id. Petitioner then filed a
motion to vacate the mandate on January 22, 2013. Dkt. 26 at
4. This, too, was denied on April 26, 2013. Id.
than three years later, Petitioner filed the instant petition
for a writ of habeas corpus under 28 U.S.C. § 2241. Dkt.
1. His petition raised the following claims: (1) denial of
counsel of choice at the beginning of trial; (2) denial of an
impartial jury; (3) prosecutorial misconduct; (4) suppression
of potentially exculpatory evidence; and (5) ineffective
assistance of counsel at trial and on direct appeal. Dkt. 5
at 2. In an opinion dated May 20, 2016, this Court dismissed
all of Petitioner's claims for lack of jurisdiction
except his claim of ineffective assistance of appellate
counsel. See Dkt. 5 at 2-4 (explaining that D.C.
Code § 23-110(g) bars federal courts from considering
habeas petitions that assert claims that can also be brought
under § 23-110(a)). The Court then informed Petitioner
that it was construing his “petition as arising under
[28 U.S.C.] § 2254, ” and held proceedings in
abeyance while he “consider[ed] the consequences that
may result from this characterization” and decided
whether “to withdraw or to amend his motion.”
Dkt. 15 at 1. Petitioner eventually indicated that he
“wanted to move forward with the motion.” Dkt.
20. Thereafter, Respondent filed an opposition to the
petition on March 13, 2018. Dkt. 26. Although the Court twice
notified Petitioner of the importance of responding to the
government's filing, see Minute Order (Mar. 14,
2018); Minute Order (May 3, 2018), and has provided him with
many months to do so, Petitioner has failed to file anything
in this matter since August 2017.
argues that Petitioner's ineffective assistance of
appellate counsel claim is time-barred. See Dkt. 26
at 7-10. The Court agrees. AEDPA sets forth a one-year
statute of limitations for prisoners, like Petitioner, to
file federal habeas petitions. 28 U.S.C. § 2244(d)(1).
According to the statute, the limitation period begins to run
“from the latest of” four dates, only one of
which is relevant here: “the date on which the judgment
became final by the conclusion of direct review, or the
expiration of the time for seeking such review.”
Id. § 2244(d)(1)(A). The limitations period is
tolled while the prisoner pursues state collateral review.
Id. § 2244(d)(2). The Supreme Court has also
held that, under “extraordinary circumstances, ”
courts may apply equitable tolling if the prisoner was
prevented from filing a timely petition by circumstances
beyond her control and she demonstrated due diligence in
pursuing her claim. Lawrence v. Florida, 549 U.S.
327, 336 (2007).
Petitioner's conviction was affirmed by the District of
Columbia Court of Appeals on December 7, 2012, and became
final on March 7, 2013, upon “the expiration of the
time for seeking” a writ of certiorari to the U.S.
Supreme Court. See Clay v. United States, 537 U.S.
522, 527 (2003) (noting that a conviction becomes final when
the Supreme Court “affirms [the] conviction on the
merits on direct appeal or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition
expires”). Nevertheless, Petitioner did not file the
instant habeas petition until April 4, 2016-more than three
years later. See Dkt. 1. Even accounting for the
time tolled during collateral proceedings between January 22,
2013, when Petitioner filed his motion to recall the mandate
on his § 23-110 petition, and April 26, 2013, when that
motion was denied, Dkt. 26 at 9, it is plain that “more
than one year passed between the final conviction date and
the habeas filing date, ” Davis v. Cross, 825
F.Supp.2d 200, 202 (D.D.C. 2011). Nor is there any basis for
this Court to conclude that equitable tolling is warranted.
Petitioner never explains why he waited to file his habeas
petition. And although the Court twice ordered Petitioner to
reply to Respondent's opposition, see Minute
Order (Mar. 14, 2018); Minute Order (May 3, 2018), he
declined to do so. Accordingly, the Court will decide the
matter without the benefit of Plaintiff's reply and
concludes that his ineffective assistance of counsel claim is
untimely under 28 U.S.C. § 2244(d)(1).
Petitioner's habeas petition is time-barred, the Court
will DENY the petition and
DISMISS this case.
separate order will issue.
 Although Petitioner has now been
released from the Federal Correctional Center in Fort Dix, he
is still serving his term of supervised release, and, is
therefore in the custody of the ...