### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA
ANTHONY LAMONT DAVIS, ) ) ) ) ) ) ) ) ) ) 

### Petitioner,


### v. JAMES N. CROSS, Respondent. MEMORANDUM OPINION Civil Case No. 10-761 (RJL)

This case is currently before the Court onRespondent's motion to dismiss Petitioner's petition for a writ ofhabeas corpus. Because Petitioner filed his petition several years after the expiration ofthe one-year limitations period, Respondent's motion will be granted. 

### I. Background. Petitioner is currently incarcerated at United States Penitentiary Hazelton, where he is serving mUltiple sentences imposed by the Superior Court ofthe District ofColumbia for firstdegree murder while armed, possession ofa firearm during a crime ofviolence or dangerous offense, and carrying a pistol without a license. Inmate Locator, Fed. Bureau ofPrisons, http://www.bop.gov/iloc2/LocateInmate.jsp (search for Register Number 32037-037); U.S.' Mot. to Dismiss Pet'r'sPet. for a Writ ofHabeas Corpus and Addendum, at 1-2 [#6] [hereinafter Mot.]. This petition is Petitioner's fifth collateral attack ofhis conviction but his first in federal court. See Mot. at 6-11 (discussing Petitioner's previous and unsuccessful collateral attacks waged in the courts ofthe District ofColumbia). Respondent has moved to dismiss the petition, arguing thatthe petition is untimely and that the collateral-attack remedy provided by the District ofColumbia Code for use in D.C.courts is adequate and effective such that federal habeas reliefis unnecessary. ld at 12-19. 1 Respondent has waived any defenses based on the Court's lack ofpersonaljurisdiction.2 

### II. Standard ofReview. Rule 12(b)(6) provides that a district court shall dismiss a complaint-inthis case, taking the form ofa petition-for "failure to state a claim upon whichreliefcanbe granted." Fed. R. Civ. P. 12(b)(6). Although all factual allegations in a complaint are assumed to be true when deciding a Rule 12(b)(6) motion, and all reasonable inferences are drawn in a plaintiffs favor, the Court need not accept either inferences "unsupportedby the facts set out in the complaint" or "legal conclusions cast inthe form offactual allegations." Kowal v. MClCommc 'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). "While a complaint attacked by a Rule 12(b)(6) motionto dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds ofhis entitle[ment] to reliefrequires more than labels and conclusions, and a formulaic recitation ofthe elements ofa cause ofaction will not do." BellAtl. Corp. v. Twombly, 550 U.S. 544,555 (2007) (alteration in original) (internal quotation marks omitted). To survive a motion to

1Although Respondent does not specify the rule under which he makes his motion, see Mot., the Court presumes that Respondent moves to dismiss under Federal Rule ofCivil Procedure 12(b)(6), see, e.g., Bridges v. Cooper, No. 5:10-HC-2060-D, 2011 WL 721916 (E.D.N.C. Feb. 22, 2011) (considering a motion to dismiss a habeas petition under Rule 12(b)(6) where the petition was allegedly untimely); Coleman v. Braxton, No. 92-cv-1297, 1992 WL 172568 (D.D.C. July 2, 1992) (considering a motion to dismiss a habeas petition under Rule 12(b)(6) where the local remedy was allegedly adequate and effective).

2 "[A] district court may not entertain a habeas petition involving presentphysical custody unless the respondent custodian is within its territorialjurisdiction." Stokes 

### v. Us. Parole Comm 'n, 374 F.3d 1235, 1239 (D.C. Cir. 2004). Respondent-Plaintiffs custodian-is within the territorialjurisdiction ofthe United States District Court for the Northern District of West Virginia. See USP Hazelton, Fed. Bureau ofPrisons, http://www.bop.gov/locations/ institutions/haz/index.jsp (last visited Mar. 11,2011). However, by failing to challenge the Court's lack ofpersonaljurisdiction, Respondent has waived any defense based on the lack of suchjurisdiction. Buesgens 

### v. Brown, 567 F. Supp. 2d 26,36n.10 (D.D.C. 2008) (citing Fed. R. Civ. P. 12(h)(I) ("[A] defendant can always waive his personaljurisdiction defenses

... by failing to raise the personaljurisdiction challenge in a responsive motion filed under Rule 12

....")). 2dismiss, a complaint must contain sufficient factual matter that, ifaccepted as true, "state[s] a claim to reliefthat is plausible on its face." 

### Id at 570. "A claim has facial plausibilitywhen the plaintiffpleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroftv. Iqbal, 129 S.Ct. 1937, 1949 (2009). This plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." 

### Id 

### III. Analysis. The state-courtjudgment, at issue in this case, became final on June 16,2003. Petitioner filed the instant petition on May 12, 2010. The one-year limitations period applicable to the instant petitionbegan to run on June 16,2003. The running ofthat limitations period was not statutorily tolled because Petitioner did not commence any state-court collateral attacks in the year after June 16, 2003. Assuming arguendo that the limitations period was equitably tolled until January 1,2006 due to alleged document withholdings by Petitioner's former attorney, the limitations period expired on January 2, 2007. As the petition is, therefore, untimely, Petitioner fails to state a habeas claim upon which reliefmay be granted. 

### A. TheTime by Which a Habeas Petition MustBe Filed Depends on the Date on Which a State Conviction Becomes Final, Whether State Remedies Have Been Exhausted, andTolling ofthe One-YearLimitations Period. Because Petitioner is in custody pursuantto ajudgment ofa state court, he makes his petition under 28 U.S.C. 

### § 2254. Banks v. Smith, 377 F. Supp. 2d 92,94 (D.D.C. 2005) ("The D.C. Circuit has consistently held that when considering a writ ofhabeas corpus a prisoner ofthe District ofColumbia is considered a State prisoner, when the prisoner is held under a conviction ofthe D.C. Superior Court."). Before bringing a federal habeas petition, apetitioner must first



### 3"exhaust[] the remedies available in the courts ofthe State." 

### § 2254(b)(1)(A).3 Alongside this exhaustion requirement is a one-year statute oflimitations: (d)(I) A I-yearperiod oflimitation shall apply to an application for a writ ofhabeas corpus by a person in custodypursuant to thejudgment ofa State court. The limitationperiod shall run from the latest of- (A) the date on which thejudgmentbecame final by the conclusion ofdirect review or the expiration ofthe time for seeking such review; (B) the date on whichthe impedimentto filing an application created by State action in violation ofthe Constitution orlaws ofthe United States is removed, ifthe 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, ifthe 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 ofthe claim or claims presented could have been discovered through the exercise ofdue diligence. 28 U.S.C. § 2244. However, the running ofthis limitations period is statutorily tolled during the time in "which a properly filed application for State post-conviction or other collateral review with respect to the pertinentjudgment or claim is pending." 

### Id. § 2244(d)(2). "Section 2244(d)(1)'s limitationperiod and 

### § 2244(d)(2), s tolling provision, together with 

### § 2254(b)'s exhaustion requirement, encourage litigants first to exhaust all state remedies and then to file their federal habeas petitions as soon as possible." Duncan v. Walker, 533 U.S. 167, 181 (2001). Finally, the running ofthis limitations period may also be equitably tolled. Hollandv. Florida, 130 S. Ct. 2549, 2560 (2010).

3Alternatively, a petitionermust showthat "there is an absence ofavailable State corrective process" or that "circumstances existthat render such process ineffective to protectthe rights ofthe" petitioner. § 22S4(b)(I)(B). Here, however, Petitioner attempts no such showing. See Pet. for a Writ ofHabeas Corpus, ECF No.1 [hereinafter Pet.]; Reply Pet. for a Writ of Habeas Corpus, ECF No.9 [hereinafter Opp'n].4

### B. TheLimitations Period Began to Run on June 16,2003. The Superior Court ofthe District ofColumbia convicted and sentenced Petitioner on April 2, 1996. Mot. at 2. The Court ofAppeals ofthe District ofColumbia affirmed on March 18,2003. Id. 4 Petitioner thereafter had 90 days in which to file a petition for a writ ofcertiorari to the Supreme Court ofthe United States. S. Ct. R. 13.1. Petitioner did not file such a petition. See Mot. at 1-3, 13. Ifa litigant does not file a petition for a writ ofcertiorari to the Supreme Court ofthe United States, his state-courtjudgmentbecomes final "whenthe time for filing a certiorari petition expires." Clay v. UnitedStates, 537 U.S. 522, 527 (2003). Petitioner's statecourtjudgmentthus became final on June 16,2003.5 Petitioner does not assert that any ofthe provisions of§ 2244(d)(I)(B)-(D) apply in this case, nor does it appearto the Court that Petitionercould successfully make any such assertion. Mot. at 14; see Pet.; Opp'n. In accordance with § 2244(d)(l)(A), the one-year statute of limitations therefore beganto run on June 16, 2003. 

### C. TheRunning ofthe Limitations Period Was Not StatutorilyTolled, NotwithstandingPetitioner's State-CourtCollateralAttacks. The running ofthe one-year statute oflimitations is statutorily tolled during the pendency ofany state-court collateral attack. 

### § 2244(d)(2). That does not mean that the limitations period does not begin to run until after any such attack has been adjudicated. Instead, it only means that the limitations period, which immediately begins to run when a state-courtjudgmentis final, may be paused when, and if, such an attack is commenced. Inthis case, the most recent statecourt collateral attack commenced after Petitioner'sjudgmenthad become final was commenced

4 Respondent later incorrectly asserts that the affirmance occurred onMay 18, not March 18. Mot. at 13. March 18 is the proper date. See Mot. Ex. B, ECF No. 6-2. 5 Respondent asserts in his motionthat Petitioner'sjudgmentbecame final on June 18, not June 16. Mot. at 13. Respondent thus incorrectly adds three months, not merely 90 days, to March 18,2003. See S. Ct. R. 30.1. 5onMarch 22,2007. Mot. at 10. Well over one year had thus intervened between the date on which Petitioner'sjudgmentbecame final and the date on which Petitioner thereafter commenced his state-court collateral attack. The one-year limitations period applicable to the instant petition thus expired on June 16, 2004-long before Petitioner's 2007 state-court collateral attack could do anything to toll it. Petitioner argues that because he is required to exhaust available state-court remedies, the statute oflimitations did not begin to run until sometime in 2009, when he lost his appeal ofyet another state-court collateral attack commenced earlier in 2009. Opp'n at 2.6 Petitionerthus misunderstands the effect ofthe exhaustion requirement. Yes, a petitioner must exhaust statecourt remedies before filing a petition in federal court, and yes, the running ofthe limitations period is tolled during the pendency ofany state-courtproceedings relating to those remedies, but only ifsuch proceedings are begun within the year after the state-courtjudgmentbecomes final. See § 2244(d)(1)(A); § 2244(d)(2); § 2254(b)(1)(A). Because Petitionerwaited longer than one year after his state-courtjudgmenthad become final to commence his state-court collateral attacks, his attempt to exhausthis state-court remedies through those attacks had no effect onthe running on the one-year statute oflimitations. D. Assuming

### Arguendo Thatthe Running ofthe Limitations Period Was Equitably Tolled, the Petition is StillUntimely. Petitioner notes that he "had a set-back with my [a]ppeal [a]ttomey" from "June 18,2003 to 2005," when the attorney allegedly "refus[ed] to tum over my [l]egal material[,] which denied

me the opportunity to proceed with my [l]egal actions." Opp'n at 3. The Court construes this as

an argument in favor ofequitable tolling ofthe running ofthe limitations period. See Holland,

6 Petitioner mentions "ajudgment on 12-21-2009," Opp'n at 2, but it is unclear to what judgmenthe refers. The most recent adjudication ofany ofPetitioner's state-court collateral attacks occurred on August 17, 2009, when the Court ofAppeals ofthe District ofColumbia affirmed the denial ofhis collateral attack commenced on January 7, 2009. Mot. at 11. 6130 S. Ct. at 2564 (remanding for consideration ofwhether an attorney's abandonment ofhis clientjustified equitable tolling ofthe § 2244(d)(1) limitations period). But even assuming for the sake ofargumentthat the running ofthe limitations period should be equitably tolled until January 1, 2006-afterthe troubles with the attorney ended in 2005-the instantpetition would still be untimely. In such a scenario, Petitioner would have had to have filed the instant petition by January 2,2007. See Fed. R. Civ. P. 6(a)(1). Instead, he filed the petition on May 12,2010. See Pet. E. The Petition Will Be Dismissed. The petition will be dismissed as untimely because, even assuming that the limitations period should be equitably tolled, Petitioner filed the petition over three years after the limitations period expired. Because the Court will dismiss the petition as untimely, the Court does not address Respondent's further arguments in favor ofdismissal. IV. Conclusion. For the reasons set forth above, Respondent's motion to dismiss will be granted. A separate order consistent with this memorandum opinion shall issue this date.

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