United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Phillip Horn, 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.
pleading guilty, the Circuit Court for the City of Staunton
sentenced Petitioner on February 13, 2012, to twenty
years' incarceration with fifteen years suspended for
computer solicitation of a child, in violation of Virginia
Code § 18.2-374.3, and for attempted indecent liberties,
in violation of Virginia Code § 18.2-370. Petitioner did
filed a petition for a writ of habeas corpus in the Supreme
Court of Virginia nearly two years later on February 4, 2014.
The Supreme Court of Virginia dismissed the petition on
August 20, 2014, and denied a petition for rehearing on
November 6, 2014. Nearly a year later, Petitioner filed his
federal petition on November 16, 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 convictions became final on March 14, 2012,
when the time expired to seek appellate review from 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). Therefore, Petitioner had
until March 14, 2013, to timely file a federal habeas
filed his state habeas petition on February 4, 2014, which
was nearly two years after his convictions became final.
Accordingly, the federal statute of limitations had already
expired by the time Petitioner filed his 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).
McQuiggin v. Perkins. __U.S. __, 133 S.Ct. 1924,
1928 (2013). and Coleman v. Thompson. 501 U.S. 722,
750 (1991), Petitioner alleges his "actual
innocence" warrants excusing the petition's
untimeliness. "[When] a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural
default." Murray v. Carrier. 477 U.S. 478, 496
(1986). Notably, "actual innocence means factual
innocence, not mere legal insufficiency." Bousley v.
United States. 523 U.S. 614, 623 (1998).
arguments in support of his actual innocence claim assert
legal innocence, not factual innocence. Petitioner
alleges that the Commonwealth violated numerous state and
federal laws to prosecute him because the Commonwealth
"wiretapped" or "intercepted" his
communications with the police officer who misrepresented
being a fourteen year old girl. Petitioner's legal
arguments are not sufficient to establish factual innocence
and are not legally persuasive. See, e.g.. 18 U.S.C.
§2511(2)(c) (not criminalizing the interception of
communications for which a party to the conversation consents
to interception); Va. Code §19.2-62(B)(2) (same).
Accordingly, Petitioner fails to establish his "actual
innocence" or that a fundamental miscarriage of justice
occurred. See, e.g., Wolfe v. Johnson, 565
F.3d 140, 160 (4th Cir. 2009).
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). Accordingly, ...