United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Shine, a Virginia inmate proceeding pro se, filed a petition
for a writ of habeas corpus, pursuant to 28 U.S.C. §
2254, to challenge the judgment entered by the Circuit Court
for the City of Lynchburg. This matter is before the court
for preliminary review, pursuant to Rule 4 of the Rules
Governing § 2254 Cases. After reviewing the record, the
court dismisses the petition as time barred.
August 28, 2013, the Circuit Court for the City of Lynchburg
sentenced Shine to fourteen years' incarceration for two
convictions of distributing cocaine. Shine's
properly-filed appeal to the Court of Appeals of Virginia was
denied on March 13, 2014. Appellate counsel did not properly
perfect an appeal to the Supreme Court of Virginia. On
January 8, 2015, Shine filed a petition for a writ of habeas
corpus with the Supreme Court of Virginia, which denied the
petition on July 6, 2015.
filed the instant petition on May 22, 2016. See R. Gov.
§ 2254 Cases 3(d) (describing the prison-mailbox rule).
The court conditionally filed the petition, advised Shine
that the petition appeared to be untimely filed, and provided
him the opportunity to explain why the court should consider
it timely filed. Shine explains in response that his
appellate counsel was ineffective for failing to perfect the
appeal to the Supreme Court of Virginia.
petitions filed under § 2254 are subject to a one-year
period of limitation. 28 U.S.C. §
2244(d)(1). The applicable period for the instant
petition began to run from the date on which the judgment of
conviction became final. 28 U.S.C. § 2244(d)(1)(A); see
United States v. Clay, 537 U.S. 522, 524 (2003)
(holding a conviction becomes final once the availability of
direct review is exhausted). 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, __U.S.__, 131 S.Ct. 1278,
1288-89(2011) (discussing proceedings that qualify as
§ 2254 petition is untimely under § 2244(d)(1)(A).
Shine's conviction became final in April 2014 when the
time expired for Shine to note an appeal from the Court of
Appeals of Virginia to the Supreme Court of Virginia. See Va.
Sup. Ct. R. 5:14(a) (stating an appeal from the Court of
Appeals is allowed only if the appellant files a notice of
appeal within thirty days of the final judgment). After
allowing for the tolling of the period while the state habeas
proceeding was pending, Shine was required to file his
federal habeas petition by October 2015, but he did not file
the petition until May 2016.
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(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
circumstances in this record that prevented Shine from filing
a timely petition after the Supreme Court of Virginia
dismissed his habeas petition. See, e.g.. United
States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)
(noting that 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, Shine filed his federal
habeas petition more than one year after the judgment became
final, Shine is not entitled to equitable tolling, and the
petition must be dismissed. See Hill v. Braxton, 277
F.3d 701, 707 (4th Cir. 2002) (recognizing a district court
may summarily dismiss a § 2254 petition if a petitioner
fails to make the requisite showing of timeliness after the
court notifies petitioner that the petition appears untimely
and allows an opportunity to provide any argument and
foregoing reasons, the court dismisses the petition for a
writ of habeas corpus as time barred. Based upon the
court's finding that Shine has not made the requisite
substantial showing of a denial of a constitutional right as
required by 28 U.S.C. § 2253(c), a certificate of
appealability is denied.