United States District Court, E.D. Virginia, Alexandria Division
Paris M. Whedbee, Petitioner,
Director of the Virginia Department of Corrections, Respondent.
MEMORANDUM OPINION AND ORDER
ELLIS, III UNITED STATES DISTRICT JUDGE.
M. Whedbee, a Virginia inmate proceeding pro se, has filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging the constitutionality of his
convictions entered in the Circuit Court of the City of
Virginia Beach. Petitioner has paid the filing fee. By Order
dated March 3, 2016, petitioner was given the opportunity to
show why the petition should not be barred from review by the
applicable statute of limitations, 28 U.S.C. § 2244(d).
Petitioner submitted an affidavit claiming that he is
entitled to equitable tolling of the limitations period based
in part upon the discovery of new evidence. See Dkt. No. 4.
By Order dated July 5, 2016, respondent was directed to
address the issues of timeliness of the instant petition.
Dkt. No. 5. Respondent filed a Motion to Dismiss and
petitioner filed a Brief in Opposition for Motion to Dismiss.
Dkt. Nos. 10, 14. For the reasons that follow,
respondent's Motion to Dismiss must be granted, and the
petition will be dismissed, as time-barred.
record reflects the following. Petitioner pled guilty to the
offense of robbery of a bank in violation of Va. Code
§§ 18.2-58 and 18.2-10 in the Circuit Court of the
City of Virginia Beach. Dkt. No. 12. Petitioner was sentenced
to ten years' imprisonment on March 10, 2010.
Id. Petitioner did not file a direct appeal of his
August 14, 2013, petitioner filed a petition for a writ of
habeas corpus in the Circuit Court for the City of Virginia
Beach. Id. Petitioner stated that he was diagnosed
with PTSD on February 8, 2013; however, he also asserted that
he had been suffering from this condition since 1983 and that
its progression was worsened by his substance abuse. Dkt. No.
1. Thus, petitioner argued, this newly discovered evidence
would have produced a different outcome in his trial because
he could have pursued an insanity defense. Id. The
state habeas petition was deemed time-barred by the circuit
court on December 3, 2013. Dkt. No. 12. Petitioner filed a
petition for appeal with the Supreme Court of Virginia, which
was refused on December 22, 2014. Dkt. No. 4. The Supreme
Court of Virginia subsequently denied petitioner's
petition for rehearing on March 5, 2015. Id.
filed the instant petition on January 25, 2016. Dkt. No. 1.
Petitioner argues that he "presented Newly Discovered
Evidence on Aug. 13, 2013 in a Habeas Corpus to Virginia
Beach Circuit Court" and that "[d]uring [his]
pursuit to challenge his conviction in the State Court an
extraordinary circumstances aroused [sic]. The
Institutional Medical Dept. mis-placed
Petitioner['s] medical record which ultimately denied him
access to the Court." Id. (emphasis in
original). Thus, petitioner argues, he is entitled to
equitable tolling because "he had no evidence to present
to the Federal Court." Id. Petitioner's
missing medical records appear to have been located by June
12, 2014. Dkt. No. 4.
§ 2254 petition for a writ of habeas corpus must be
dismissed if filed later than one year after (1) the judgment
becomes final; (2) any state-created impediment to filing a
petition is removed; (3) the United States Supreme Court
recognizes the constitutional right asserted; or (4) the
factual predicate of the claim could have been discovered
with due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D).
argues that the statute of limitations began running 30
(thirty) days after the date of petitioner's conviction
because that is when the conviction became final, as
petitioner did not file a direct appeal. United States v.
Williams. 139 F.3d 896 (table), 1998 WL 120116 (4th Cir.
Mar. 5, 1998) at *2 ("Under Virginia law, a conviction
is final thirty days after the entry of the judgment of
conviction."). Thus, respondent argues, under §
2244(d)(1)(A), the one-year limitations period began to run
on April 9, 2010.
argues that the running of the statute of limitations is
governed by § 2244(d)(1)(B) because his missing medical
records were a state-created impediment to filing his
petition. Specifically, petitioner argues that without the
medical records, "he had no evidence to present to the
Federal Court;" however, petitioner's missing
medical records did not "impede" him from filing
his petition because lack of evidence does not prevent the
filing of a petition. See Minter v. Beck. 230 F.3d
663, 666 (4th Cir. 2000) ("the term 'impediment'
speaks to hindering an effort while the term 'futile'
speaks to an unsuccessful result of an already undertaken
effort). Therefore, the running of the statute of limitations
is not governed by § 2244(d)(1)(B).
petitioner argues that the running of the statute of
limitations is governed by § 2244(d)(1)(D) and did not
begin to run until he was diagnosed with PTSD because that
diagnosis is the factual predicate of his claim. Assuming
without deciding that petitioner's PTSD could not have
been discovered with due diligence prior to his diagnosis,
the running of the statute of limitations is governed by
§ 2244(d)(1)(D) and it began running on February 8,
calculating the limitations period, the Court generally must
exclude the time during which state collateral proceedings
pursued by a petitioner were pending, 28 U.S.C. §
2244(d)(2); however, where the state collateral proceeding is
not timely filed, the statute of limitations is not tolled
while such proceedings are pending. Pace v.
DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a
postconviction petition is untimely under state law,
'that [is] the end of the matter' for purposes of
§ 2244(d)(2)"). Here, because petitioner's
state habeas petition was deemed untimely, the limitations
period ran unchecked for almost three years from February 8,
2013 until January 25, 2016, which is well over the one year
the petition is untimely under § 2244(d), unless
petitioner can establish that the statute of limitations does
not apply or should otherwise be tolled. See Hill v.
Braxton.277 F.3d 701, 707 (4th Cir. 2002) (requiring
notice and the ...