Dontae Terrell Ebron v. Joseph Walters

Summary

A United States magistrate judge recommends granting the respondent’s motion to dismiss and dismissing without prejudice Donte Terrell Ebron’s 28 U.S.C. § 2254 petition. The recommendation concludes that the petition is untimely, that the actual-innocence claim is unexhausted, and that the ineffective-assistance claim is procedurally defaulted. The dismissal without prejudice would allow Ebron to present his actual-innocence claim in Virginia state court.

Holdings

1. The petition was untimely under AEDPA because direct review concluded on February 4, 2009, the limitations period was tolled only during the pendency of Ebron's 2009 state habeas petition, and the federal petition was filed many years after the limitations period expired.
2. The actual-innocence claim was unexhausted because Ebron had not presented it through Virginia's writ-of-actual-innocence procedure, which was the state-law procedure available for such a claim.
3. The ineffective-assistance claim was unexhausted and procedurally defaulted because Ebron did not appeal the denial of his 2009 state habeas petition, the time for appeal had expired, and Virginia's successive-petition bar would prevent a new state habeas petition based on facts known when the earlier petition was filed.
4. The petition should be dismissed without prejudice because it was untimely and mixed, and Ebron still had an available state-court avenue to present his actual-innocence claim.

Questions Presented

1. Whether Ebron's federal habeas petition was untimely under the one-year limitation period in 28 U.S.C. § 2244(d)(1), including whether delayed accrual based on newly discovered evidence applied.
2. Whether Ebron's actual-innocence claim was exhausted where Virginia law provided a writ-of-actual-innocence procedure that he had not used.
3. Whether Ebron's ineffective-assistance claim was unexhausted and procedurally defaulted because he did not appeal the denial of his prior state habeas petition and could not file a successive petition under Virginia law.
4. Whether the mixed, untimely petition should be dismissed without prejudice to permit exhaustion of the actual-innocence claim in state court.

Disposition

dismissed