United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI, District Judge.
Petitioner Ricky Nelson Nelms, a Virginia inmate proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2012 convictions and sentence in the Amherst County Circuit Court. Upon review of the record, the court finds that Nelms' petition is untimely filed and that Nelms has not demonstrated any ground for equitable tolling. Therefore, the court will dismiss his petition.
On April 25, 2012, the Amherst County Circuit Court entered judgment against Nelms, convicting him of four counts of obtaining money by false pretenses and sentencing him to 40 years of incarceration, with 36 years suspended. Nelms did not appeal. Nelms filed a habeas petition in the Supreme Court of Virginia on August 7, 2014, and the court dismissed his petition on September 23, 2014 and refused rehearing on January 14, 2015. Nelms filed the instant § 2254 habeas petition on November 26, 2014. The court conditionally filed Nelms' petition, advised him that the petition appeared to be untimely filed, 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). A petitioner must demonstrate either the timeliness of his petition pursuant to § 2244(d) or that the principle of equitable tolling applies in his case. See Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). Otherwise, an untimely petition must be dismissed by a federal district court. 28 U.S.C. § 2244(d)(1).
Under § 2244(d)(1)(A), Nelms' conviction became final on May 25, 2012, when his time to file an appeal to the Court of Appeals of Virginia expired. Therefore, Nelms had until May 27, 2013 to file a timely federal habeas petition. Nelms did not meet this deadline; in fact, by that date, Nelms had yet to file his state habeas petition. Accordingly, Nelms' petition is barred unless he demonstrates grounds for equitable tolling of the one-year statute of limitations.
In response to the court's conditional filing order, Nelms alleges that he cannot read or write and, therefore, was "unable to read or understand [his] rights and the situation at hand...." However, Nelms' illiteracy is an insufficient basis to equitably toll the statute of limitations. See 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, ...