United States District Court, E.D. Virginia, Alexandria Division
Darron M. Cary, Petitioner,
Harold W. Clarke, Respondent.
ELLIS, III UNITED STATES DISTRICT JUDGE
M. Cary, 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
conviction of second degree murder following a jury trial in
the Virginia Beach Circuit Court. Petitioner has applied to
proceed in forma pauperis in the action. By an Order
dated September 23, 2016, petitioner was informed that his
claims appeared to be time-barred, and that four of the
claims additionally are procedurally defaulted. Petitioner
was allowed thirty (30) days within which to show cause why
the petition should not be dismissed as barred by the statute
of limitations, and why claims 4 through 8 should not be
barred as procedurally defaulted in the alternative. (Dkt.
No. 5). On October 18, 2016, petitioner filed a response,
captioned as an Amended Petition. (Dkt. No. 10). After
careful consideration, the petition must be dismissed, as
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).
instant case, petitioner was convicted and sentenced to serve
twenty-five (25) years in prison on August 27, 2010. Pet. at
2. Petitioner filed a direct appeal in the Virginia Court of
Appeals, which denied his petition for appeal on April 26,
2011. Pet. at 3. Petitioner then appealed to the Supreme
Court of Virginia, which denied his petition for appeal on
November 16, 2011. Therefore, petitioner's conviction
became final on February 14, 2012, the last date he could
have petitioned the Supreme Court of the United States for a
writ of certiorari.
calculating the one-year limitations period, the Court must
exclude the time during which properly-filed state collateral
proceedings pursued by petitioner were pending. See 28 U.S.C.
§ 2244(d)(2); Pace v. DiGuelielmo, 544 U.S. 408
(2005) (determining that the definition of "properly
filed" state collateral proceedings, as required by
§ 2244(d)(2), is based on the applicable state law as
interpreted by state courts). On November 28, 2012,
petitioner filed a state habeas petition in the trial court,
which dismissed the petition on March 19, 2013, apparently on
that holding that it was time-barred. Pet. at 4. Petitioner took
no appeal of that result.
February 9, 2015, petitioner filed a "motion to vacate
judgment'' in the Supreme Court of Virginia, Case No.
CR09-2974. The application was refused, apparently for lack
of jurisdiction, on March 15, 2015. On September 7, 2016,
petitioner filed the instant federal petition in the United
States District Court for the Western District of Virginia,
which transferred the matter to this district pursuant to 28
U.S.C. §§ 1404(a) and 2241 (d) on September 16,
2016. (Dkt. No. 3-4)
February 14, 2012, the date petitioner's conviction
became final, and November 28, 2012, the date petitioner
filed his state habeas petition, 286 days passed. Between
March 19, 2013, the date petitioner's state habeas
petition was denied by the trial court, and February 9, 2015,
the date petitioner filed his "motion to vacate" in
Supreme Court of Virginia, an additional 691 days passed.
From March 15, 2015, the date the "motion to
vacate" was refused, until September 7, 2016, the date
this federal petition was filed, and additional 542 days
elapsed. When these days are combined they establish that the
instant petition was filed 1, 154 days beyond the one-year
limit. Accordingly, 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 opportunity to
respond before a sua sponte dismissal under §
addition, even if the petition had been filed timely, claims
4 through 8 would be procedurally barred from federal review.
Petitioner acknowledges that those claims have never been
raised in the state forum. Pet. at 12. Before bringing a
federal habeas petition, a state prisoner is required first
to exhaust his claims in the appropriate state court. 28
U.S.C. § 2254(b); Granberry v. Greer, 481 U.S.
129 (1987). To do so, he "must give the state courts one
full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process." O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). Here, because
petitioner failed to present claims 4 though 8 to the Supreme
Court of Virginia, they are unexhausted.
addition, "[a] claim that has not been presented to the
highest state court nevertheless may be treated as exhausted
if it is clear that the claim would be procedurally barred
under state law if the petitioner attempted to present it to
the state court." Gray v. Netherland, 518 U.S.
152, 161 (1996). Importantly, "the procedural bar that
gives rise to exhaustion provides an independent and adequate
state-law ground for the conviction and sentence, and thus
prevents federal habeas review of the defaulted claim."
Id. at 162. Therefore, such a claim is deemed to be
simultaneously exhausted and defaulted for purposes of
federal habeas review. See Bassette v. Thompson, 915
F.2d 932 (4th Cir. 1990). Here, then, claims 4 through 8 are
simultaneously unexhausted and procedurally defaulted.
"Amended Petition" filed in response to the Order
of September 23, petitioner makes no argument that is
directly responsive to the issue of timeliness; instead, he
"ask[s] that his claims 4-8 not be barred from the
federal habeas corpus." (Dkt. No. 10 at 1) In connection
with that argument, petitioner refers briefly to his
"incompetence to the law." Id. Read very
liberally, petitioner's statement might be construed as
an argument that he is entitled to equitable tolling of the
limitations period on the basis of his pro se status. The
United States Supreme Court has established that equitable
tolling is applicable to the § 2244(d)(2) limitations
period. See Holland v. Florida, 560 U.S. 631 (2010)
("Now, like all 11 Courts of Appeals that have
considered the question, we hold that § 2244 (d) is
subject to equitable tolling in appropriate cases.")- To
qualify for equitable tolling, a petitioner must demonstrate
both (1) that he had been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and
prevented timely filing. Id. at 649, citing Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005). A petitioner
asserting equitable tolling '"bears a strong burden
to show specific facts'" that demonstrate
fulfillment of both elements of the test, Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting
Brown v. Barrow, 512 F.3d 12304, 1307 (11th Cir.
2008)), and generally is obliged to specify the steps he took
in diligently pursuing his federal claim. Spencer v.
Sutton, 239 F.3d 626, 630 (4th Cir. 2001). In addition,
the petitioner must "demonstrate a causal relationship
between the extraordinary circumstance on which the claim for
equitable tolling rests and the lateness of his filing, a
demonstration that cannot be made if the petitioner, acting
with reasonable diligence, could have filed on time
notwithstanding the circumstances." Valverde v.
Stinson, 224 F.3d 129, 134 (2d Cir. 2000). It is widely
recognized that equitable tolling is to be applied only
infrequently. Rouse v. Lee, 339 F.3d 238, 246
(4thCir. 2003) (" We believe, therefore, that any resort
to equity must be reserved for 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.")
to these authorities, petitioner's possible suggestion
that he is entitled to equitable tolling because he is a
layman at law is without merit. That argument has been
uniformly rejected not only by the Fourth Circuit, United
States v. Snsa, 364 F.3d 507, 512 (4th Cir. 2004)
("[E]ven in the case of an unrepresented prisoner,
ignorance of the law is not a basis for equitable
tolling."), but also by virtually every court that has
considered it. See. e.g.. Cross-Bey v. Gammon, 322
F.3d 1012, 1015 (8th Cir. 2003) ([E]ven in the case of an
unrepresented prisoner alleging a lack of legal knowledge or
legal resources, equitable tolling has not been
warranted/'); United States v. Riggs, 314 F.3d
796, 799 (5th Cir. 2002) ("[A] petitioner's own
ignorance or mistake does not warrant equitable
tolling...."); Delanev v. Matesans, 264 F.3d 7,
15 (1 st Cir. 2001) (rejecting the argument that a pro se
prisoner's ignorance of the law warranted equitable
tolling); Marsh v. Spares, 223 F.3d 1217, 1220 (10th Cir.
2000) (same). Further, petitioner has failed to demonstrate
that it 'would be unconscionable to enforce
the limitation period against [him or that] gross injustice
would result" Rouse. 339 F.3d at 246.
Accordingly, this petition is time-barred from federal
consideration, and must be dismissed on that basis. It thus
is unnecessary to consider in greater depth petitioner's
argument that claims 4 through 8 should not be deemed
foregoing reasons, this petition must be dismissed with