JOHN MICHAEL CUMMINS, Petitioner, v. NELSON SMITH, Respondent.
Civil Action No. 3:23-cv-445-HEH
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division
March 11, 2025
Henry E. Hudson, Senior United States District Judge
(Denying § 2254 Petition)
John Michael Cummins (“Petitioner“), proceeding pro se, brings this petition pursuant to
I. Pertinent Procedural History
The Supreme Court of Virginia aptly summarized the relevant procedural history in its opinion denying Petitioner‘s state petition for a writ of habeas corpus:
In 2013, petitioner pled guilty pursuant to a written plea agreement to object penetration, aggravated sexual battery, and two counts of indecent
liberties. Petitioner was sentenced in accordance with the plea agreement to an indeterminate sentence in the Department of Juvenile Justice for object penetration, five years’ imprisonment for aggravated sexual battery, and twelve months’ imprisonment on each count of indecent liberties. The trial court suspended the sentences upon certain conditions that included a ten-year period of good behavior and indeterminate probation beginning upon his release from confinement. In 2014, petitioner was released from confinement. Thereafter, petitioner violated his probation by being present with a minor child in his home and the court revoked and re-imposed a one-year active sentence. In 2017, prior to petitioner‘s release, the Commonwealth filed a petition to civilly commit petitioner as a sexually violent predator (SVP). Petitioner stipulated he met the criteria as a SVP and should be civilly committed. Petitioner was committed to the custody of the Department of Behavioral Health and Developmental Services (DBHDS).
On April 19, 2021, the circuit court conducted an annual review of petitioner‘s civil commitment as required by
Code § 37.2-910 . Reports from two experts were submitted that included the experts’ diagnoses of petitioner‘s multiple mental abnormalities or personality disorders and both experts opined that petitioner may be an appropriate candidate for conditional release. The court questioned the experts about petitioner‘s risk factors, treatment progress, and statements in the reports the court viewed as inconsistent. The court found petitioner posed too great a risk to children and the community and concluded he remained a SVP who did not meet the criteria for conditional release. Petitioner was recommitted to the custody of DBHDS. Petitioner did not appeal the recommitment order to this Court, and he now challenges the legality of his detention pursuant to this recommitment.In his sole claim, petitioner contends the circuit court should have granted him conditional or unconditional release at his annual review because he does not meet the statutory or “constitutional requirements” to be committed as a SVP. Petitioner states he is no longer a risk to others and all parties agreed he should be released, but the court denied his request.
The Court holds this claim is barred because this non-jurisdictional issue could have been raised during the direct appeal process and, thus, is not cognizable in a petition for a writ of habeas corpus. Slayton v. Parrigan, 215 Va. 27, 29 (1974).
(ECF No. 18-8, at 1-2.)
Claim One Ineffective Assistance of Counsel.
- Counsel was ineffective when he stipulated at Petitioner‘s interim hearing that Petitioner was a SVP, even though Petitioner “wanted to strongly argue [his] not being a SVP.” (ECF No. 1-1, at 9);
- Counsel failed to oppose or “put up any kind of defense” to support the notion that Petitioner was suitable subject for conditional release, (id.); and,
- Counsel failed to file an appeal as directed, (id.).
Claim Two Petitioner does “not meet the constitutional or statutory threshold to be committed or classified as a sexually violent predator and even if one was to classify [him] as an SVP,” he is “safe enough to be conditionally released.” (Id. at 11-12.)
II. Statute of Limitations
Rule 5(b) of the Rules Governing Section 2254 Petitions in the United States District Courts requires Respondent to address whether any of the claims in the 2254 Petition are barred by the relevant statute of limitations. Although Respondent failed to do so, the Court retains the ability to raise the issue sua sponte after giving the petitioner notice and an opportunity to respond. Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002).
Section 101 of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“) amended
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. The limitation period shall run from the latest of— - the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
- 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;
- 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
- the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
- The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
The judgment that recommitted Petitioner as a SVP was entered on June 9, 2021. (ECF No. 18-1, at 2.) That judgment became final thirty (30) days later, on July 9, 2021, when Petitioner failed to file an appeal.2 See Va. Sup. Ct. R. 5:9(a) (requiring a petitioner to file a notice for appeal within thirty days of the entry of judgment); Gonzalez v. Thaler,
The limitation period ran for 262 days before Petitioner filed his state petition for a writ of habeas corpus on March 29, 2022. See
In Claim One (c), Petitioner faults counsel for failing to file an appeal as directed. The pertinent provision provides for a belated commencement of the limitation period until “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”
Counsel‘s failure to pursue an appeal was discoverable as of July 10, 2021, when the failure to note an appeal was discoverable from review of the public record. Wade v. Robinson, 327 F.3d 328, 333 (4th Cir. 2003); see Green v. Johnson, 515 F.3d 290, 305 (4th Cir. 2008); (ECF No. 18-1, at 1-2). Although Petitioner could have discovered his counsel‘s failure to pursue an appeal as of that date, “to require that he do so ignores the reality of [detention] and imposes an unreasonable burden on [civil detainees] seeking to appeal.” Granger v. Hurt, 90 F. App‘x 97, 100 (6th Cir. 2004) (citing Wims, 225 F.3d at 190 n.4). While no “magic number” exists for the time afforded a reasonable prisoner to discover an appeal has not been pursued, a petitioner must offer some evidence that he acted with due diligence. See Ryan v. United States, 657 F.3d 604, 607-08 (7th Cir. 2011) (finding that “a reasonable prisoner may take at least two months . . . to suspect
Here, Petitioner previously filed with this Court an earlier
I asked my attorney repeatedly to appeal this decision, however to my knowledge he has not done so (see attached exhibits from VA Court of Appeals and VA Supreme Court). I have not been able to make contact with him since April 2021. I have called and wrote him many times about this matter to no avail. To my knowledge, it is legally too late for me to appeal this decision now anyway.
Id. at 4. Petitioner executed that petition on August 12, 2021. Id. at 8. Therefore, at the latest, acting with due diligence, Petitioner could have discovered, or in fact did discover, that his counsel failed to note an appeal, by August 12, 2021. Cf. El-Abdu‘llah v. Dir., Va. Dep‘t of Corr., No. 3:07-cv-494, 2008 WL 2329714, at *2 (E.D. Va. June 4, 2008) (“[W]hen counsel‘s communications or lack thereof indicate that something is amiss with a petitioner‘s appeal, due diligence requires the petitioner to act on that information.” (citing Shelton v. Ray, No. 7:05-cv-00271, 2005 WL 1703099, at *2 (W.D. Va. July 20, 2005); Gonzalez-Ramos v. United States, Nos. 05 Civ. 3974 & 99 Cr. 1112(LAP), 2007 WL 1288634, at *8 (S.D.N.Y. May 2, 2007))). Therefore, the Court concludes that Petitioner is entitled to a belated commencement of the limitation period for his § 2254 Petition until, at the latest, August 12, 2021.
III. Conclusion
For the reasons set forth above, the § 2254 Petition will be denied. The action will be dismissed. A certificate of appealability will be denied.
An appropriate Order shall accompany this Memorandum Opinion.
/s/
Henry E. Hudson
Senior United States District Judge
Date: March 11, 2025
Richmond, Virginia