Unpublished
Unpublished
No. 06-6719
SAMUEL E. HARRIS,
Petitioner - Appellant,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:04-cv-00070-MHL)
Argued:
Decided:
PER CURIAM:
Samuel E. Harris, a Virginia state prisoner, appeals the
district courts dismissal of his petition seeking a writ of habeas
corpus under 28 U.S.C. 2254.
petition
was
filed
outside
the
one-year
limitations
period
(AEDPA).
This
determination
was
based
on
the
courts
underlying
conviction
limitations period.
and,
thus,
did
not
toll
AEDPAs
We conclude that
I.
Following a guilty plea, Harris was convicted of several
felony
charges
in
Virginia
state
court.
He
was
ultimately
final for purposes of AEDPA on October 15, 2001, the day on which
his time for appealing to the Supreme Court of Virginia expired.
See 28 U.S.C. 2244(d)(1)(A).
On February 13, 2002, Harris filed a pro se Petition for
Writ of Mandamus in state circuit court.
December 6, 2002.1
motion
based
on
the
determination
that
the
mandamus
petition Harris filed in state court did not toll the AEDPA
limitations period.
II.
Under AEDPA a state prisoner has one year to file a
petition for a writ of
2244(d)(1).
28 U.S.C.
petition tolled his one-year period for filing while it was pending
in state court between August 8, 2002, and July 21, 2003.
However,
unless
limitations
his
period.
mandamus
The
petition
parties
agree
also
that
tolled
if
the
the
AEDPA
mandamus
The state argues that we should not address the tolling issue
because in the underlying plea agreement Harris allegedly waived
the right to seek withdrawal of his guilty plea. We disagree. The
scope and validity of the waiver in Harriss plea agreement relates
to the merits of his ineffective assistance claim and may be
properly addressed in the first instance on remand.
4
We have
(4th
Supreme
Cir.
2001).
The
Court
has
explained
that
an
limits upon its delivery, the court and office in which it must be
lodged, and the requisite filing fee.
Id.
Id. at 10-11.
531 U.S.
under
2244(d)(2).
The
petition
qualifies
as
an
The
to
consider
the
petition
(even
if
it
lacked
satisfied.
J.A.
67 (quoting Durkin v. Davis, 538 F.2d 1037, 1042 (4th Cir. 1976)
(quoting Board of Supervisors v. Combs, 169 S.E. 589, 593 (Va.
1933))).
J.A. 68.
limitations
period
under
2244(d)(2)
in
part
because
531 U.S. at 8.
the
petitioner
in
Artuz
from
raising
claim
in
Id. at 9-11.
The
reasonable
time
before
such
application
is
made.
The
Commonwealth did not raise this argument before the district court
and, as we have held, the [f]ailure to raise an argument before
the district court typically results in the waiver of that argument
on appeal.
2008).
with the notice requirement does not render his mandamus petition
improperly filed for purposes of 2244(d)(2) because the notice
requirement constitutes a condition to obtaining relief under
Artuz rather than a condition to filing.
In denying Harriss
petition, the Virginia circuit court did not call into question its
ability to consider the availability of the relief requested.
See
Commonwealths
intermediate
appellate
court,
which
has
Artuz,
where
the
Supreme
Court
did
not
include
notice
531 U.S. at 8.
the
Commonwealth
argues
that
tolling
the
submission
2244(d)(2).
will
toll
the
limitations
Not every
period
under
conviction,
as
contemplated
by
2244(d)(2).
Moreover,
10
11