United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, District Judge.
David Joseph Sanchez, Jr., a Virginia inmate proceeding by counsel, submitted this 28 U.S.C. § 2254 petition ("§ 2254 Petition'7). Sanchez argues that his life sentence without possibility of parole violates the Eighth Amendment under Miller v. Alabama , 132 S.Ct. 2455 (2012) and that Miller announced a new, previously unavailable rule of constitutional law retroactive to cases on collateral review, thus providing a belated commencement of the limitation period under 28 U.S.C. § 2244(d)(1)(C). Marie Vargo has moved to dismiss. Sanchez has replied. The matter is ripe for disposition. Because the statute of limitations bars the § 2254 Petition, the Motion to Dismiss will be granted.
I. PROCEDURAL HISTORY
The Circuit Court of the County of Chesterfield ("Circuit Court") convicted Sanchez of capital murder, attempted robbery, use of a firearm in the commission of a murder, and use of a firearm in the commission of an attempted robbery, committed at the age of seventeen, and sentenced him to life plus eighteen years in prison. Commonwealth v. Sanchez, Nos. CR99F00507-01 through -04, at 1 (Va. Cir. Ct. Dec. 16, 2009). The Court of Appeals of Virginia denied Sanchez's petition for appeal. Sanchez v. Commonwealth, No. 0047-00-2, at 1 (Va. Ct. App. June 23, 2000). On January 5, 2001, the Supreme Court of Virginia refused Sanchez's petition for appeal. Sanchez v. Commonwealth, No. 001757, at 1 (Va. Jan. 5, 2011). Sanchez filed no other challenges to his conviction and sentence.
On June 24, 2013, Sanchez filed this § 2254 Petition, arguing that his life sentence without the possibility of parole violates the Eighth Amendment under Miller v. Alabama , 132 S.Ct. 2455 (2012).
II. STATUTE OF LIMITATIONS
Vargo contends that the federal statute of limitations bars Sanchez's claims. Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2244 to establish a one-year period of limitation for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. Specifically, 28 U.S.C. § 2244(d) now reads:
1. 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-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) 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;
(C) 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
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
2. 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.
28 U.S.C. § 2244(d). Sanchez's conviction became final for the purposes of § 2244(d) on April 5, 2001, the day upon which the time expired for Sanchez to seek certiorari to the United States Supreme Court. Hill v. Braxton , 277 F.3d 701, 704 (4th Cir. 2002) ("[T]he one-year limitation period begins running when direct review of the state conviction is completed or when the time for seeking direct review has expired...." (citing 28 U.S.C. § 2244(d) (1) (A))); see Sup. Ct. R. 13(1) (requiring a petition for certiorari to be filed within ninety days of entry of judgment by state court of last resort or of the order denying discretionary review). Thus, under § 2244(d)(1)(A), Sanchez had until April 5, 2002 to file his § 2254 Petition. Sanchez filed his § 2254 Petition more than ten years after that date. Thus, the statute of limitations bars Sanchez's § 2254 Petition unless Sanchez demonstrates entitlement to a belated commencement of the limitation period under § 2244(d)(1)(B)-(D) or equitable tolling.
Sanchez does not argue that that is a case of equitable tolling. Nor does the record support application of the doctrine. Sanchez only argues entitlement to a belated commencement of the limitations period under § 2244(d)(1)(C) based upon Miller v. Alabama , 132 S.Ct. 2455 (2012) which was decided on June 25, 2012. For Miller to make Sanchez's petition timely, the "right" in Miller must "ha[ve] been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." § 2244(d)(1)(C). As discussed below, although the right in Miller is new, it is not retroactively applicable to cases on collateral review.
III. THE NEW RULE DOCTRINE
A. Demand For Relief ...