by Douglas Ankney
There was good news and bad news for former Virginia prisoner Jeramiah Chamberlain on December 22, 2021. That’s when the U.S. Court of Appeals for the Fourth Circuit affirmed dismissal of his suit against officials with the state Department of Corrections (DOC), alleging they failed to treat his drug problem. See: Chamberlain v. Va. Dep’t of Corr., 2021 U.S. App. LEXIS 38011 (4th Cir.).
But the good news was that Chamberlain by then had been released from DOC custody, having scored a rare win three months earlier in a habeas corpus petition alleging ineffective assistance of counsel (IAC) at trial.
In that order, issued on September 30, 2021, the U.S. District Court for the Western District of Virginia found that Chamberlain was entitled to equitable tolling of the statute of limitations on his otherwise untimely 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus. The Court said that Chamberlain had shown cause to excuse his procedural default because his retained counsel failed to file a petition and misadvised Chamberlain as to the expiration of the statute of limitations for filing his own pro se petition.
The Court then found that Chamberlain’s petition contained a substantial claim: That his trial counsel was ineffective for failing to object to a jury instruction that did not state all of the elements that the Commonwealth must prove to sustain a finding of guilt by the jury.
In May 2011, two police officers in Virginia’s Montgomery County attempted to serve an outstanding warrant on Chamberlain, who was at his mother’s home. In an exchange of gunfire, one officer suffered burns on his arms due to his close proximity to Chamberlain when he fired, but he was not struck by Chamberlain’s bullet.
Chamberlain was indicted on charges including attempted capital murder of a police officer. Representing himself, he held the jury to a deadlock, and a mistrial was declared. At his second trial in August 2012, Chamberlain again represented himself, but he changed his mind after the prosecution rested and requested that appointed standby counsel be reinstated to full duty. The trial court granted Chamberlain’s request. The jury then convicted Chamberlain of several offenses, including attempted capital murder of a police officer.
Chamberlain retained new counsel, who moved in May 2013 to set aside the attempted capital murder verdict because the trial court’s jury instructions were flawed; they failed to instruct that the mens rea for that offense is “willful, deliberate, and premeditated.” The trial court denied that motion, however, and imposed a sentence of 25 years’ imprisonment for the attempted capital murder offense. Counsel appealed.
The Virginia Court of Appeals did not address the flawed jury instructions, deeming the issue waived because trial counsel had failed to object to them, and affirmed the judgment. The Virginia Supreme Court denied Chamberlain’s petition for review on June 3, 2015. Chamberlain then paid new counsel a $15,000 retainer to file for a writ of certiorari at the U.S. Supreme Court, along with any subsequent state and federal habeas corpus petitions. The certiorari petition was denied in October 2015, but Chamberlain did not find out until April 2016.
Chamberlain believed the one-year statute of limitations to file his state habeas petition, after final disposition on appeal, began when the U.S. Supreme Court denied his certiorari petition. He became nervous when he had not heard from counsel by August 2016 – two months before he thought his state habeas petition was due.
Habeas Petitions Filed
Chamberlain then prepared his own state habeas petition and mailed it on September 12, 2016 – a full month before he thought it was due. In the petition he made a claim of IAC based on his trial attorney’s failure to object to the flawed jury instructions. Chamberlain also sent a letter discharging counsel, along with a copy of his petition.
The Montgomery County Circuit Court denied the state habeas petition as untimely. It said that Chamberlain had either two years from the date of the trial court’s final judgment – which expired on June 6, 2015 – or one year from the date of the final disposition of his appeal in state court, which expired on June 3, 2016, per Code of Va. § 8.01-654(A)(2). Nevertheless, the circuit court addressed the merits of the IAC claim and found “the jury instructions as a whole adequately covered the elements of attempted capital murder.” The circuit court also determined that trial counsel had sound, strategic reasons for failing to object. The Virginia Supreme Court denied Chamberlain’s appeal of that ruling.
Chamberlain’s federal habeas petition was filed in the Western District of Virginia on September 17, 2018. It raised numerous claims, including the IAC claim detailed in his state habeas petition. The district court observed that “Chamberlain’s state judgment became final on October 13, 2015, the date on which the Supreme Court denied his petition for certiorari,” so the one-year statute of limitations “began running at that time, [per] 28 U.S.C. § 2244(d)(1)(A).”
“Absent tolling, the last date for filing his habeas petition in this Court was October 13, 2016,” the Court continued.
But the limitation period is tolled while a properly filed application for state post-conviction relief is pending, per § 2244(d)(2). That is, the clock starts running when the state judgment becomes final, stops running while a properly filed state application is pending, and resumes running from the point where it stopped, when the state application is no longer pending. Since Chamberlain’s state petition was untimely filed in the state court, it was not “properly filed;” therefore, it could not toll the federal one-year limitation period, making his federal petition untimely, too.
However, as laid out in Holland v. Florida, 560 U.S. 631 (2010), the one-year limitation period is subject to equitable tolling if a petitioner shows: (1) he is diligently pursuing his rights and (2) some extraordinary circumstances prevented his timely filing. In the case, the Court determined that Chamberlain’s payment of $15,000 to have attorneys file claims was evidence that he diligently pursued his rights. As to prong (2), the Court opined: “In Holland, as here, the petitioner’s attorney did not file a petition by the deadline and apparently did not do the research to determine the appropriate deadline.”
“In that case,” the Court continued, “the attorney had filed a state habeas petition, but failed to notify the client of the state supreme court’s decision and failed to file timely a federal habeas petition. In Chamberlain’s case, the attorney filed a petition for certiorari in the United States Supreme Court but failed to notify Chamberlain when the petition was denied and failed to timely file a state habeas petition. In both Holland and here, ‘the failures seriously prejudiced a client who thereby lost what was likely his single opportunity’ for review of his claims.”
Per Blevins v. Commonwealth, 590 S.E.2d 365 (Va. 2004), the Court said that Chamberlain’s IAC claim could be raised for the first time only in a state habeas proceeding – so failure to timely file the claim resulted in default of his only opportunity to present its merits.
Catching a Break
Although Chamberlain ultimately filed his own state habeas petition, he did so only because his retained counsel failed to act, the Court noted. Furthermore, counsel’s September 2016 letter stating he was still preparing the petition revealed that counsel was unaware that the period for filing had expired in June 2016. The U.S. Supreme Court ruled in Martinez v. Ryan, 566 U.S. 1 (2012), that either ineffective counsel or the absence of counsel altogether in state habeas proceedings can constitute cause to excuse procedural default of IAC claims where those claims can only be raised for the first time in state habeas proceedings. Thus the Court here concluded that since absence of effective counsel is grounds for relief from default then it is also adequate grounds for equitable tolling.
To prevail on his defaulted IAC claim, per Trevino v. Thaler, 569 U.S. 413 (2013), the Court said that Chamberlain had to show: (1) the claim of IAC at trial was substantial; (2) the “cause” of the default was the lack of counsel or ineffectiveness of counsel, under the standards of Strickland v. Washington, 466 U.S. 668 (1984); (3) the state post-conviction proceeding was the first time the IAC claim was raised; and (4) the state post-conviction proceeding was the first one in which the IAC claim was allowed by state law.
In this case, prong (1) pertained to the flawed jury instructions that Chamberlain raised in his habeas petitions, whereas prong (2) concerned the ineffectiveness or absence of counsel during the preparation and filing of the state habeas petitions at his first opportunity, which also satisfied prong (4). But to satisfy prong (1), the IAC claim must have merit, meaning that once a petitioner has overcome procedural default, the Court may address the merits of the claim.
To prevail on the IAC claim and obtain habeas relief, Chamberlain had to satisfy the standard of Strickland, the Court said – i.e., he had to show that (1) trial counsel’s performance was so deficient that he was not functioning as counsel guaranteed by the Sixth Amendment and (2) that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
The Court observed that “[f]ailure to properly instruct the jury on each element of the charged offense violates the Sixth Amendment’s jury trial guarantee,” per Neder v. United States, 527 U.S. 1 (1999). That’s because the “[f]ailure to object to an instruction that omits an essential element of the crime falls below an objective standard of reasonableness,” per Reagan v. Norris, 365 F.3d 616 (8th Cir. 2004). The Court recalled that “[t]he capital murder statute, as relevant to Chamberlain, requires (1) willful, deliberate, and premeditated killing (2) of a law enforcement officer (3) for the purpose of interfering with his official duties, [per] Va. Code Ann. § 18.2-31(6). This means that attempted capital murder requires an attempt, with specific intent to kill a law enforcement officer, by a willful, premeditated, and deliberate act, for the purpose of interfering with his official duties,” the Court said, citing Jordan v. Commonwealth, 649 S.E.2d 709 (Va. App. 2007).
But the jury instructions at Chamberlain’s trial did not include any mention of “willful, deliberate, or premeditated” killing. In fact, they permitted the jury to convict Chamberlain of attempted capital murder by finding only (1) that Chamberlain intended to kill the officer for the purpose of interfering with the performance of his duties and (2) that Chamberlain made a direct act towards the completion of the killing.
The evidence in this case was such that a jury could find that Chamberlain acted spontaneously only to avoid apprehension – which would qualify for attempted second-degree murder. But without proper instructions, the jury did not decide whether he acted willfully, deliberately, and with premeditation, and the Commonwealth was relieved of its burden to prove those elements, materially lightening its burden of proof, the Court said, pointing to Lobbins v. United States, 900 F.3d 799 (6th Cir. 2018).
Counsel’s failure to object to the flawed jury instructions satisfied the first half of the test laid out in Strickland. The rest was satisfied because attempted second-degree murder carried penalties of two to 10 years in prison, whereas attempted capital murder carried penalties of 25 years to life in prison – and the jury had recommended the lowest possible sentence on the attempted capital murder conviction – establishing a “reasonable probability” that the outcome with correct instructions would have been different.
Since Chamberlain was convicted in state court, he was entitled to federal habeas relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court,” per Lockyer v. Andrade, 538 U.S. 63 (2003). Given that the U.S. Supreme Court “has consistently held that jury instructions which omit an element of the offense violate the defendant’s Sixth Amendment right to trial by jury,” the Court concluded that “[t]he state court’s determination that instructions were adequate when completely omitting any mention of willful, deliberate, and premeditated, an essential element of the crime, is contrary to clearly established law.” The Court also concluded that the state court’s determination that trial counsel had “strategic reasons” for failing to object to the flawed instructions was contrary to clearly established law. “There is no conceivable strategic reason for a defense lawyer to forgo a challenge to a prejudicial jury instruction; a mistake of law is deficient performance,” the Court declared, citing Cates v. United States, 882 F.3d 731 (7th Cir. 2018).
“Because trial counsel’s performance was below an objective standard of reasonableness,” the Court concluded that “Chamberlain was prejudiced” and “the state habeas court’s decision to the contrary is an unreasonable application of federal law and contrary to United States Supreme Court precedent.” Accordingly, the Court ordered Chamberlain released after completion of his sentences for other minor offenses unless Virginia retried him for attempted capital murder within 120 days. See: Chamberlain v. Clarke, 2021 U.S. Dist. LEXIS 189627 (W.D. Va.).
This case is significant to the author because I was the one who initially informed Chamberlain of the correct date that his one-year statute of limitations began and that his state habeas was already out of time – prompting him to act. While not disclosed in the opinion, his retained counsel refunded only half of the $15,000, claiming to have contributed to his habeas petition, presumably because Chamberlain used some of the same arguments presented in the certiorari petition.
The key take-away here is a distinction: The one-year limitations period for filing a federal habeas petition begins to run down when either the U.S. Supreme Court denies a petition for certiorari or the time for filing a certiorari petition expires, usually 90 ways from the date of the state court’s final disposition; however, the time limitation for filing state habeas petitions generally begins from the date of the last state court decision and is not delayed by asking for a writ of certiorari from the U.S. Supreme Court.
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