United States District Court, E.D. Virginia Alexandria Division
MEMORANDUM OPINION AND ORDER
JAMES C. CACHERIS, District Judge.
Lawrence Sykes, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction of aggravated malicious wounding in the Circuit Court of the County of Greensville. By Order dated December 3, 2013, the petition was conditionally filed, petitioner was advised that the petition appeared to be timebarred, and he was provided an opportunity to establish that the statute of limitations does not apply or should be tolled. See Hill v. Braxton , 277 F.3d 701, 707 (4th Cir. 2002) (requiring notice and the opportunity to respond before a sua sponte dismissal under § 2244(d)). Petitioner also was informed that the claims appeared to be procedurally defaulted, and he was allowed thirty (30) days within which to show cause why the petition should not be barred from federal review on that basis. On January 7, 2014, petitioner filed a response and several exhibits. After careful consideration of these submissions, this petition must be dismissed as barred by the statute of limitations.
A petition for a writ of habeas corpus must be dismissed if filed later than one year after (1) the judgment becomes final; (2) any state-created impediment to filing a petition is removed; (3) the United States Supreme Court recognizes the constitutional right asserted; or (4) the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D). In the instant case, petitioner was convicted and sentenced on June 10, 2010. Pet. at 1. Petitioner filed a direct appeal in the Virginia Court of Appeals, which denied his petition for appeal on May 4, 2011. See Sykes v. Commonwealth, R. No. 2302-10-2 (Va. Ct. App. May 2, 2011). A motion for rehearing was denied on June 3, 2011. Because petitioner did not seek further review by the Supreme Court of Virginia, his conviction became final thirty (30) days later, on July 3, 2011, when the time for noticing an appeal to the Supreme Court of Virginia expired. See Va. Sup.Ct. R. 5A:6(a).
In calculating the AEDPA limitations period, the Court generally must exclude the time during which state collateral proceedings pursued by petitioner were pending. See 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo , 544 U.S. 408 (2005) (determining that the definition of "properly filed" state collateral proceedings, as required by § 2244(d)(2), is based on the applicable state law as interpreted by state courts). Here, however, petitioner did not commence his first postconviction proceeding until May 30, 2013, when he filed an application for a writ of habeas corpus in the Supreme Court of Virginia. Pet. at 4. Since by then over twenty-two (22) months had elapsed since the AEDPA grace period ended, the pendency of a state action could no longer toll the limitations period. See Ferguson v. Palmateer , 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); Webster v. Moore , 199 F.3d 1256, 1259 (11th Cir. 2000) (holding that a state postconviction motion filed after expiration of the limitations period cannot toll the period, because there is no period remaining to be tolled); Rashid v. Khulmann , 991 F.Supp. 254, 259 (S.D.N.Y. 1998) ("Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations."). Accordingly, this petition is untimely under § 2244(d), unless petitioner can establish that the statute of limitations does not apply or should otherwise be tolled.
In response to the Order of December 3, petitioner argues that his attorney violated the Virginia Rules of Professional Conduct by "declining" to represent petitioner "further" on direct appeal, and then failing to inform petitioner of the time limits for seeking state and federal habeas corpus relief. Dkt. 5. In addition, petitioner points out that he is an "uniformed [sic] unskilled pro se litigant" of whom "stick [sic] adherence" should not be required. Id . at 2.
Attached to petitioner's response are several exhibits. They reflect that on December 16, 2010, Ronnie C. Reaves, Esquire addressed a letter to petitioner, informing him in relevant part as follows:
After the sentencing hearing, I gave notice of appeal to the Court of Appeals for Virginia. I was appointed by the Court to prepare and file the Petition for Appeal. I have prepared the Petition on Appeal and am enclosing a copy of the Petition for Appeal with this letter. I am this day filing this Petition for Appeal with the Court of Appeals and am enclosing a copy to you. I am also enclosing copies of the trial proceedings in the case.
After reviewing the transcript and other documents in your case, I am of the opinion that there was no error committed by the Court in the hearing and trial of your case before the Court.
Under law, I am required to forward to you a copy of the of the Petition on Appeal to you. [sic] In that I am of the opinion that there was no error committed by the Court in the hearing and trial of your case, you are given the right to file a Petition for Appeal on your own behalf with the Court. I am therefore, as required by the Rules of the Court, sending you a copy of the Petition on Appeal which In filed in your case. I am also required to file a motion allowing me to withdraw from your case and a motion for additional time to allow to file [sic] a supplemental petition for appeal.
The reason that the motions to withdraw and motion for extension of time are filed is give you time to file, on your own behalf, a supplemental petition for appeal. If the motion is granted allowing me to withdraw, I will no longer be representing in the matter. [sic]
Dkt. 5, Ex. 3. On January 13, 2011, counsel addressed a second letter to petitioner which duplicated the foregoing correspondence and enclosed a revised petition for appeal. Dkt. 5, Ex. 2.
On January 25, 2011, the Court of Appeals of Virginia granted petitioner an extension of time until February 9, 2011 to file a pro se supplemental petition for appeal. Dkt. 5, Ex. 1. Apparently petitioner elected not to do so, however, because on May 4, 2011, the Court of Appeals of Virginia denied the petition for appeal and granted counsel's motion for leave to withdraw. Sykes v. Commonwealth, R. No. 2302-10-2 (Va. Ct. App. May 4, 2011); Dkt. 5, Ex. 4. In its opinion, the appellate court noted that "[a] copy of the this brief [by counsel] has been furnished to appellant with sufficient time for appellant to raise any matter that appellant chooses." Id., slip op. at 1. On June 3, 2011, the appellate court denied petitioner's motion to set aside the judgment and grant rehearing. Dkt. 5, Ex. 5.
On July 19, 2012, a letter was addressed to petitioner by the Chief Deputy Clerk of the Supreme Court of Virginia. After thanking petitioner for his "recent" letter concerning the case, the Clerk informed petitioner that there was no record of his having filed an appeal to the Supreme Court of Virginia. Thus, on July 15, 2011, "we certified this Court's May 4, 21011 and June 3, 2011 orders and returned your record to the trial court. Accordingly, this Court no longer has jurisdiction over your case and cannot advise you as to how you might consider proceeding at this point." Dkt. 5, Ex. 6.
While petitioner does not use the term, it appears that he intends to argue that he is entitled to equitable tolling of the limitations period. The United States Supreme Court has established that equitable tolling is applicable to the § 2244(d)(2) limitations period. See Holland v. Florida, ___ U.S. ___ , 130 S.Ct. 2549 (2010) ("Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244 (d) is subject to equitable tolling in appropriate cases."). It has been settled in this circuit for some time that § 2244(d) may be subject to equitable doctrines such as tolling under very limited circumstances. See Rouse v. Lee , 339 F.3d 238, 246 ...