United States District Court, W.D. Virginia, Roanoke Division
SAMUEL G. WILSON, District Judge.
Petitioner Kenneth Lee, a Virginia inmate proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2009 convictions and sentence in the Pittsylvania County Circuit Court. The court finds that Lee's petition is untimely and that there are no grounds for equitable tolling. Therefore, the court dismisses his petition.
On September 22, 2009, after Lee pled guilty, the Pittsylvania County Circuit Court entered judgment against Lee, convicting him of possessing a firearm as a convicted felon, armed statutory burglary, two counts of robbery, and two counts of using a firearm during the commission of a felony. The court sentenced Lee to a total term of forty-three years incarceration.
Lee appealed and the Court of Appeals of Virginia denied his appeal on April 9, 2010. Lee further appealed and the Supreme Court of Virginia refused his appeal on August 3, 2010 and denied his petition for rehearing on September 24, 2010. Lee did not file a petition for writ of certiorari with the Supreme Court of the United States. However, Lee filed a habeas petition in the Pittsylvania County Circuit Court on September 17, 2011, which the court dismissed on November 9, 2012. Lee appealed to the Supreme Court of Virginia on June 11, 2013 and the court dismissed the petition on July 26, 2013 finding that the appeal was untimely filed.
Lee filed his federal habeas petition in this court on November 29, 2013. The court conditionally filed Lee's petition, advised him that the petition appeared to be untimely, and gave him an opportunity to respond to the court regarding the timeliness of his petition.
A one-year statute of limitations applies when a person in custody pursuant to the judgment of a state court files a federal petition for a writ of habeas corpus. 28 U.S.C. § 2244(d). In this case, the statute of limitations began to run on December 23, 2010, when Lee's conviction became final. However, the time during which a "properly filed" state habeas petition is pending is not counted toward the period of limitation. 28 U.S.C. § 2244(d)(2). Assuming, without finding, that Lee's state habeas petition was properly filed in the Pittsylvania County Circuit Court, the statute of limitations clock stopped running on September 17, 2011, after approximately 269 days, when he filed the petition. The clock began running again on November 10, 2012, when the Pittsylvania County Circuit Court denied the petition. Lee's appeal of the denial of his state habeas petition to the Supreme Court of Virginia affords him no tolling because it was not "properly filed." Artuz v. Bennett , 531 U.S. 4, 8 (2000). Lee filed his federal habeas petition on November 29, 2013, approximately 383 days after the Pittsylvania County Circuit Court denied his habeas petition. Therefore, the time clock on Lee's statute of limitations ran for a total of approximately 649 days before he filed his federal habeas petition. Accordingly, Lee's petition is time-barred unless he demonstrates grounds for equitable tolling.
In response to the court's conditional filing order regarding the timeliness of his petition, Lee argues that the prison was on lockdown for approximately nineteen days in November and December of 2012 and for approximately ten days in March of 2013. Lee alleges that during these lockdowns, he was unable to access the law library, a notary, and the mailbox, and was unable to make copies of his petition.
Equitable tolling is available only in "those rare instances where- due to circumstances external to the party's own conduc- it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Rouse v. Lee , 339 F.3d 238, 246 (4th Cir. 2003) (internal quotation marks omitted) (citing Harris v. Hutchinson , 209 F.3d 325, 330 (4th Cir. 2000)). The petitioner must demonstrate that some action by the respondent or "some other extraordinary circumstance beyond his control" prevented him from complying with the statutory time limit, despite his exercise of "reasonable diligence in investigating and bringing the claims." Harris , 209 F.3d at 330 (citing Miller v. N.J. State Dep't of Corn , 145 F.3d 616, 617 (3d Cir. 1998)). Generally, "[t]ransfers between prison facilities, solitary confinement, lockdowns, restricted access to the law library and an inability to secure court documents do not qualify as extraordinary circumstances.' Allen v. Johnson , 602 F.Supp.2d 724, 727-28 (E.D. Va. 2009) (quoting Warren v. Kelly , 207 F.Supp.2d 6, 10 (E.D.N.Y. 2002)). The court finds that Lee has not demonstrated that he diligently pursued his claims or extraordinary circumstances that warrant equitable tolling and, therefore, his petition is untimely filed.
For the reasons stated, the court dismisses Lee's ...