United States District Court, W.D. Virginia, Roanoke Division
JACLKSON L. KISER, Senior District Judge.
Kevin Terry Dotson, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. I previously dismissed without prejudice Respondent's first motion to dismiss and directed Respondent to expand the record and file another motion. After Respondent filed the second motion to dismiss, Petitioner filed a motion to amend, which the court granted and directed Respondent to file a new motion to dismiss. Presently before me is Respondent's third motion to dismiss, to which Petitioner filed a motion for leave to file another amended petition. After reviewing the record, I deny Petitioner leave to file an amended petition and grant Respondent's motion to dismiss.
On June 1, 2012, the Circuit Court of Russell County sentenced Petitioner to an active sentence of thirteen years' incarceration after Petitioner pleaded guilty to abduction and aggravated malicious wounding. On July 30, 2012, Petitioner filed a motion for sentence reduction, which the Circuit Court denied on the same day. Petitioner did not appeal.
On October 29, 2012, Petitioner filed a pro se petition for a writ of habeas corpus with the Supreme Court of Virginia. Petitioner argued that he had mental health problems, the Commonwealth's witness was not credible due to her alcohol consumption, the trial judge had a conflict of interest, and the evidence was not sufficient to sustain the convictions. The Supreme Court of Virginia dismissed the petition on February 7, 2013, as procedurally defaulted pursuant to Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974).
It is not apparent from the original petition when Petitioner commenced this action because Petitioner did not aver when he deposited the original petition in the institutional mail at the Southwest Virginia Regional Jail ("Jail"). See R. Gov. § 2254 Cases 3(d) (describing the prison-mailbox rule). The record reflects that Petitioner first mailed the petition to the Court of Appeals for the Fourth Circuit, and on October 11, 2013, that court returned the mailed petition as an enclosure and explained that Petitioner must file the petition with a federal district court. Petitioner then mailed the petition from the Jail to the court for docketing, and the petition arrived on November 4, 2013, bearing a postal date stamp of November 1, 2013.
In response to a court order, Respondent filed the affidavit of a lieutenant at the Jail, explaining that the Jail does not maintain an outgoing legal mail log. Consequently, the lieutenant cannot state with certainty when Petitioner handed the petition to Jail officials for mailing. The record reflects that Petitioner handed the original petition to correctional officials for mailing to this court sometime between October 12 and October 30, 2013.
Presently before me is Petitioner's amended petition, in which he alleges that counsel rendered ineffective assistance by: (1) not ensuring that Petitioner entered a knowing and intelligent guilty plea; (2) not investigating the crime; and (3) not preparing for trial pursuant to Virginia Code § 8.01-397.
Habeas petitions filed under § 2254 are subject to a one-year period of limitation. 28 U.S.C. § 2244(d)(1). The applicable period for the instant petition began to run from the date on which the judgment of conviction became final. 28 U.S.C. § 2244(d)(1)(A); see United States v. Clay, 537 U.S. 522, 524 (2003) (holding a conviction becomes final once the availability of direct review is exhausted). The one-year filing period is tolled while a convict's "properly filed application for State post-conviction or other collateral review" is "pending." 28 U.S.C. § 2244(d)(2); see Wall v. Kholi, ___ U.S. ___, 131 S.Ct. 1278, 1288-89 (2011) (discussing proceedings that qualify as collateral review).
Respondent establishes by a preponderance of the evidence that the petition was not timely filed. Petitioner's conviction became final on Monday, July 2, 2012, when the time expired for Petitioner to note an appeal from the Circuit Court of Russell County to the Court of Appeals of Virginia. See Va. Sup.Ct. R. 5A:6(a) (stating an appeal from the trial court to the Court of Appeals is allowed only if the appellant files a notice of appeal within thirty days of the final judgment). After tolling the time state collateral review was pending on July 30, 2012, and between October 29, 2012, and February 7, 2013, Petitioner had until Friday, October 11, 2013, to properly file his federal petition. October 11, 2013, is the same day the Court of Appeals for the Fourth Circuit wrote the letter to Petitioner and returned the petition as misfiled in the wrong court. Even if I assume that the Court of Appeals mailed the letter on the same day, it is not more probable that the United States Postal Service delivered the letter and petition from Richmond to the Jail in Meadowview, Virginia, and then Petitioner received the petition from Jail staff, repackaged the petition for mailing, and returned it to prison officials all on the last day of filing. Furthermore, the envelope containing the federal petition that commenced this action was date stamped on November 1, 2013, and the envelope normally would have been date stamped within, at most, a few days of when he deposited it in the institutional mailbox. Despite the opportunity to do so, Petitioner has not established when he handed the federal petition to Jail staff for mailing to this court, and Respondent has shown by a preponderance of the evidence that this action was commenced after the one-year limitations period expired.
Equitable tolling is available only in "those rare instances where - due to circumstances external to the party's own conduct - 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) (en banc) (internal quotation marks omitted) (citing Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). Thus, a petitioner must have "been pursuing his rights diligently, and... some extraordinary circumstance stood in his way" to prevent timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010).
Petitioner's lack of knowledge about legal process or the statutory deadline for federal habeas relief does not support granting such extraordinary relief. Harris, 209 F.3d at 330. Furthermore, the court does not find any extraordinary circumstances in this record that prevented Petitioner from filing a timely petition. See, e.g., United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (noting that pm se status and ignorance of the law does not justify equitable tolling); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (noting that unfamiliarity with the law due to illiteracy or pro se status does not toll limitations period). Accordingly, Petitioner filed his ...