Argued: December 8, 2016
from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:13-cv-23807)
Galliher, Brennan Curtis, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant.
Lin, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Appellee.
Stephen L. Braga, Appellate Litigation Clinic, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for
Patrick Morrisey, Attorney General, Gordon L. Mowen, II,
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
WEST VIRGINIA, Charleston, West Virginia, for Appellee.
TRAXLER, FLOYD, and THACKER, Circuit Judges.
Calvin Gray filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, which the district court
denied as untimely. Gray appeals this denial, arguing that
his petition was timely because it was filed within one year
of his discovery of his petition's factual predicates,
which Gray contends he could not have discovered sooner than
he did. We disagree, and find that had Gray exercised due
diligence, he would have discovered these factual predicates
far earlier. For this reason, we affirm the district
court's denial of Gray's petition.
1991, Appellant Calvin Gray was convicted by a West Virginia
court of murder in the first degree. We detail his crime to
the extent the facts are relevant to his § 2254
petition. On or about November 12, 1990, Christopher Dillard
and Artissa Bennett were stabbed to death, and their bodies
found on Tank Hill in Mercer County, West Virginia. Earlier
that day, Dillard and Bennett had visited Gray at his home,
and became engaged in an altercation with Gray and Gray's
half-brother, Karl Finney. Finney stabbed and killed Dillard
at the house, and was later convicted of his murder.
Gray's young nephew, Omega Rosire, testified at
Gray's trial that after Finney stabbed Dillard, Gray and
Finney dragged Dillard to Gray's van, and then forced
Bennett into the van as well. Rosire stated that he and Gray
then drove the van to Tank Hill, and that upon their arrival,
Gray took Bennett out of the van and walked her down the
hill. Rosire heard Bennett scream and then heard the
screaming abruptly stop, and saw the white coat that Bennett
had been wearing fly up in the air.
trial, Gray testified on his own behalf. He admitted to
fighting with Dillard and transporting Dillard and Bennett to
Tank Hill; however, he claimed that Finney stabbed both
Bennett and Dillard at the house, and that both Bennett ...