United States District Court, W.D. Virginia, Roanoke Division
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE
Darnell Graves, a Virginia inmate proceeding pro se, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The court conditionally filed the petition,
advised Petitioner that the petition appeared to be untimely
filed, and granted Petitioner the opportunity to explain why
the petition was timely filed. Petitioner has responded, and
this matter is ripe for . preliminary review pursuant to Rule
4 of the Rules Governing § 2254 Cases. After reviewing
the record, I deny Petitioner's motion to appoint counsel
and dismiss the petition as time barred.
Circuit Court of the City of Danville sentenced Petitioner on
May 4, 2000, to forty years' imprisonment after
Petitioner pleaded guilty to statutory burglary, attempted
sodomy, and attempted rape. Petitioner did not file an appeal
to the Court of Appeals of Virginia.
February 27, 2014', Petitioner filed a petition for a
writ of habeas corpus with the Supreme Court of Virginia,
which dismissed the petition as untimely on April 20, 2014.
Petitioner filed the instant federal petition no earlier than
August 24, 2016. See R. Gov. § 2254 Cases 3(d)
(describing the prison-mailbox rule).
habeas petitioner does not have a constitutional right to
counsel. See Pennsylvania v. Finley, 481 U.S. 551,
555 (1987) ("The right to appointed counsel extends to
the first appeal of right, and no further."). The court
may appoint counsel to a habeas petitioner if the court
"determines that the interests of justice so
require" 18 U.S.C. § 3006A(a)(2)(B).
argues that he needs counsel because he allegedly received
ineffective assistance of counsel and needs help
investigating his claim. However, nothing in the record
presently indicates that Petitioner is unable to proceed pro
se or that the matter is so difficult to require the
appointment of counsel. Accordingly, the interests of justice
do not require the appointment of counsel at this time, and
the motion to appoint counsel is denied. -
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, 552 (2011) (discussing
proceedings that qualify as collateral review). A district
court may summarily dismiss a § 2254 petition if a
petitioner fails to make the requisite showing of timeliness
after the court notifies the petitioner that the petition
appears untimely and allows an opportunity to provide any
argument and evidence. Hill v. Braxton, 277 F.3d
701, 707 (4th Cir. 2002).
§ 2254 petition is untimely under § 2244(d)(1)(A).
Petitioner's conviction became final in June 2000 when
the time expired for Petitioner to note an appeal from the
Circuit Court of the City of Danville to 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). Petitioner filed his state habeas
petition more than three years later in February 2014.
Because the one-year federal statute of limitations had
already expired by the time Petitioner filed his state habeas
petition, statutory tolling is not permitted. See, e.g.,
Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000)
(recognizing that state habeas petitions cannot revive a
period of limitation that had already expired).
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).
Petitioner's 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, I do not find any extraordinary
circumstances 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 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). Moreover, Petitioner does not establish
a basis to excuse his ...