United States District Court, W.D. Virginia, Roanoke Division
EDWARD L. KINGSLEY, Petitioner,
HAROLD W. CLARKE, Respondent.
Michael F. Urbanski United States District Judge
L. Kingsley, a Virginia prisoner proceeding pro se, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 to challenge his convictions entered by the
Circuit Court for the City of Staunton. Respondent filed a
motion to dismiss, and Petitioner responded, making the
matter ripe for disposition. After reviewing the record, the
court dismisses the petition as time barred..
Circuit Court for the City of Staunton sentenced Petitioner
on June 9, 2009, to object sexual penetration, in violation
of Virginia Code § 18.2-67.2, and aggravated sexual
battery of a minor, in violation of Virginia Code §
18.2-67.3. Petitioner appealed unsuccessfully to the Court of
Appeals of Virginia, and the Supreme Court of Virginia
refused his appeal on September 8, 2010. Petitioner does not
claim to have requested review by the Supreme Court of the
filed a petition for a writ of habeas corpus in the Circuit
Court for the City of Staunton on December 20, 2011, and that
court dismissed the petition on June 7, 2012, as untimely
filed. Next, Petitioner filed a petition for a writ of habeas
corpus with the Supreme Court of Virginia on January 11,
2013. Petitioner claimed in the second petition that,
inter alia, he was deprived "the right to
counsel or effective assistance of counsel during the
initial-review collateral proceeding under Martinez v.
Ryan, 132 S.Ct. 1309 (2012)[, ]" when the circuit
court dismissed his first petition as untimely. The Supreme
Court of Virginia dismissed the habeas petition as successive
and untimely on March 5, 2013, and Petitioner filed his
federal petition no earlier than July 27, 2015. See R. Gov.
§ 2254 Cases 3(d) (describing the prison-mailbox rule).
petitions filed under § 2254 are subject to a one-year
period of limitation. 28 U.S.C. §
2244(d)(1). Generally, this period begins to run from
the date on which the judgment of conviction becomes final.
28 U.S.C. § 2244(d)(1)(A). A conviction becomes final
once the availability of direct review is exhausted.
United States v. Clay, 537 U.S. 522, 524 (2003). 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, 562
U.S. 545, 558-60 (2011) (discussing proceedings that qualify
as collateral review):
§ 2254 petition is untimely under § 2244(d)(1)(A).
Petitioner's conviction became final on December 7, 2010,
when the time expired to seek review by the Supreme Court of
the United States. See U.S. Sup. Ct. R. 13(1) (stating
appellant must file a petition for a writ of certiorari
within ninety days of the judgment being appealed).
Therefore, Petitioner had until December 7, 2011, to timely
file a federal habeas petition.
filed his first state habeas petition on December 20, 2011,
which was more than a year after his convictions became
final. Accordingly, the federal statute of limitations had
already expired by the time Petitioner filed his first state
habeas petition, and statutory tolling is not possible.
See, e.g., Minter v. Beck, 230 F.3d 663,
665 (4th Cir. 2000) (recognizing that state habeas petitions
cannot revive an already expired federal limitations period).
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, 649-50(2010).
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
circumstance 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 pro 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). Moreover, Petitioner fails to establish
in this case that the Martinez exception applies to
excuse an untimely filed federal petition. The Supreme Court
in Martinez held that ineffective assistance of
counsel "at initial-review collateral proceedings may
establish cause for a prisoner's procedural default of a
claim of ineffective assistance at trial." 132 S.Ct. at
1315. Although Martinez concerned a judicially-
crafted procedural default doctrine, it did not extend to an
already-expired federal limitations period fixed by statute.
See, e.g.. Couch v. Woodson. No. 3:13cvl46, 2013
U.S. Dist. LEXIS 158461, at *5-6, 2013 WL 5933543, at *2
(E.D. Va. Nov. 5, 2013) (collecting cases for that
proposition). Accordingly, Petitioner filed the federal
habeas petition beyond the one-year statute of limitations,
Petitioner is not entitled to equitable tolling, and the
petition must be dismissed.
foregoing reasons, the court grants Respondent's motion
to dismiss and dismisses the petition for a writ of habeas
corpus. Based upon the court's finding that Petitioner
has not made the requisite substantial showing of a denial of
a constitutional right as required by 28 U.S.C. §