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Gray v. Ballard

United States Court of Appeals, Fourth Circuit

February 8, 2017

CALVIN GARRETT GRAY, Petitioner - Appellant,
v.
DAVID BALLARD, Respondent - Appellee.

          Argued: December 8, 2016

         Appeal 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)

         ARGUED:

          Erin Galliher, Brennan Curtis, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.

          Elbert Lin, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee.

         ON BRIEF:

          Stephen L. Braga, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.

          Patrick Morrisey, Attorney General, Gordon L. Mowen, II, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee.

          Before TRAXLER, FLOYD, and THACKER, Circuit Judges.

          FLOYD, CIRCUIT JUDGE.

         Appellant 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.

         I.

         In 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.

         At his 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 ...


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