United States District Court, W.D. Virginia, Roanoke Division
May 8, 2015
NICHOLAS D. BROOKS, Petitioner,
HAROLD W. CLARKE, Respondent.
NORMAN K. MOON, District Judge.
Petitioner Nicholas D. Brooks, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 2011 conviction and sentence in Orange County Circuit Court. The court notified Brooks that his petition appeared to be untimely filed under 28 U.S.C. § 2244(d) and granted him an opportunity to provide additional information on that issue, which he has done. After review of this additional information, the petition, and court records available online, I conclude that the petition must be summarily dismissed as untimely filed.
Brooks pleaded guilty in Orange County Circuit Court to eight counts related to reproduction of child pornography (CR10000281 to CR10000288). The Circuit Court sentenced Brooks to a total of 80 years in prison with 69 years suspended and entered judgment on May 6, 2011. Brooks filed an appeal, which the Court of Appeals of Virginia dismissed on October 28, 2011. Brooks did not appeal this disposition to the Supreme Court of Virginia.
Brooks filed a petition for a writ of habeas corpus in Orange County Circuit Court on July 17, 2013, alleging (as he does here) that counsel was ineffective in failing to advise him of the consequences of his guilty pleas and failing to present mitigating evidence at sentencing (CL13000159-00). The circuit court denied relief on October 24, 2013. Brooks' habeas appeals to the Supreme Court of Virginia (131786 & 132052) were dismissed by that court on June 30, 2014.
Brooks filed his federal habeas petition, at the earliest, on August 27, 2014, when the Eastern District court received a copy of his petition from his mother, who had signed the petition on Brooks' behalf. Brooks later submitted his affidavit, stating that he had approved the petition and believed the information therein contained to be true.
A person in custody under the judgment of a state court has one year to file a federal habeas corpus petition. See 28 U.S.C. § 2244(d)(1). Generally, this period begins to run from the date on which the judgment of conviction becomes final, which occurs when petitioner has exhausted his opportunities to seek direct review. § 2244(d)(1)(A). If the district court gives petitioner notice that the petition appears to be untimely and allows him an opportunity to provide any argument and evidence regarding timeliness, and petitioner fails to make the requisite showing, the district court may summarily dismiss the petition. See Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002).
Brooks did not file his § 2254 petition within the applicable statutory period. Brooks' conviction became final under § 2244(d)(1)(A) on November 29, 2011, when the time expired for him to appeal the Court of Appeals of Virginia dismissal of his criminal appeal. On that date, Brooks' one-year period under § 2244(d)(1)(A) began to run and expired on November 27, 2012. He filed his current petition nearly two years after that, in August 2014. Thus, his petition was not timely filed. Brooks also fails to present any ground on which he is entitled to equitable tolling of the statutory filing period under § 2244(d)(1). See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (finding equitable tolling available when petitioner demonstrates due diligence and exceptional circumstances that prevented him from filing on time); United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (finding that inmate's pro se status and ignorance of law are not sufficient grounds to justify equitable tolling).
For the reasons stated, the court dismisses Brooks's petition as untimely filed. The Clerk is directed to send copies of this memorandum opinion and accompanying order to petitioner.