United States District Court, W.D. Virginia, Roanoke Division
December 22, 2016
LOWELL MILLER, Petitioner,
VIRGINIA DEPARTMENT OF CORRECTIONS, ET AL., Respondents.
Glen E. Conrad Chief United States District Judge
Miller, a Virginia inmate proceeding pro se, filed this
action as a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254. The court concludes that his petition
must be summarily dismissed as untimely filed.
submissions and court records indicate that on January 3, 2001,
he was convicted in the Halifax County Circuit Court on
felony charges of conspiracy, robbery, attempted robbery, and
related offenses, and a misdemeanor charge of assault and
battery. The Court sentenced Miller to fifty-nine years and
twelve months, with forty-three years and twelve months
suspended. The charges stemmed from the attempted robbery of
a Food Lion employee and the robbery of a Pizza Hut
restaurant. The Court of Appeals of Virginia denied
Miller's appeal on July 6, 2001. Miller did not pursue an
appeal to the Supreme Court of Virginia.
August 30, 2002, Miller filed a petition for a writ of habeas
corpus in the Circuit Court, arguing among other things that
his trial attorney provided ineffective assistance pretrial
and during appeal proceedings and that Miller was actually
innocent. By final order dated November 14, 2002, the Court
dismissed Miller's petition, finding no merit to the
ineffective assistance and actual innocence claims. Miller
did not appeal this disposition to the Supreme Court of
Virginia. Instead, he filed a second petition for a writ of
habeas corpus on January 23, 2003, in the Supreme Court of
Virginia. This second petition was dismissed on March 6,
2003, as untimely filed.
current §2254 petition was signed and dated on October
13, 2016, and was received in this court on October 19, 2016.
He raises claims that trial counsel provided ineffective
assistance by abandoning his appeal and that various
"due process" violations allegedly occurred during
petitions filed under § 2254 are subject to a one-year
statute of limitations. 28 U.S.C. § 2244(d)(1).
Generally, the one-year filing period begins to run from the
date on which the judgment of conviction becomes final - when
the availability of direct review is exhausted. See
28 U.S.C. § 2244(d)(1)(A). If the district court gives
the petitioner notice that the motion appears to be untimely
and allows an opportunity to provide any argument and
evidence regarding timeliness, and the petitioner fails to
make the requisite showing, the district court may summarily
dismiss the petition. See Hill v. Braxton. 277 F.3d
701, 707 (4th Cir. 2002).
§ 2254 petition is clearly untimely filed under §
2244(d)(1)(A). When the Court of Appeals of Virginia
denied Miller's direct appeal on July 6, 2001, he had
thirty days - until August 6, 2001 - to note an appeal to the
Supreme Court of Virginia, see Va. Sup. Ct. R. 5:14, but
failed to do so. Accordingly, Miller's convictions became
final and his federal habeas filing period began to
run on August 6, 2001. That period expired one year later -
on August 6, 2002.
one-year period for filing a federal habeas petition
stops running when a postconviction proceeding is properly
filed in a state court and remains stopped while the state
proceeding is pending. Harris v. Hutchinson, 209
F.3d 325, 327 (4th Cir. 2000) (citing 28 U.S.C. §
2244(d)(2)). Miller filed his first state post-conviction
petition on August 30, 2002, after the expiration of
his one-year federal filing period on August 6 of that year.
As such, the pendency of that state petition did not toll the
federal filing clock. See ici at 327-28 (rejecting argument
that filing period begins after post-conviction proceedings
are completed). For the same reason, Miller's second
state habeas petition filed in January 2003 also
could not affect the running of the federal time period.
Moreover, because the second state petition was dismissed as
untimely, it did not qualify as a properly filed
post-conviction action under § 2244(d)(2). See Pace
v. DiGuglielmo, 544 U.S. 408, 414 (2005) (holding that a
"state postconviction petition rejected by the state
court as untimely" is not "properly filed" so
as to toll federal habeas filing period).
Miller recognizes that his § 2254 petition is untimely.
He argues that the court should equitably toll the federal
filing period for various reasons and address the merits of
his habeas claims. The court finds no ground for
such tolling in Miller's case.
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) (quotation marks omitted). Under this
doctrine, Miller can avoid the time bar only if he can show
(A) that he has diligently pursued a judicial remedy but an
extraordinary circumstance beyond his control prevented him
from meeting the deadline, Pace, 544 U.S. at 418; or
(B) that he is actually innocent so that continued
confinement works a miscarriage of justice. McQuiggin v.
Perkins. U.S. . 133 S.Ct. 1924, 1931 (2013).
first blames the lateness of his petition on his limited
education and lack of knowledge of the law, including
habeas filing deadlines. An inmate's pro se
status, limited education, and ignorance of habeas
law, however, are not sufficient grounds to justify equitable
tolling, because these deficiencies are neither extraordinary
nor outside the inmate's control. United States v.
Sosa. 364 F.3d 507, 512 (4th Cir. 2004).
also argues that trial counsel's abandonment of him as a
client should excuse his late filing of his federal
habeas petition. After denial of Miller's direct
appeal on July 6, 2001, Miller's trial attorney, James
Edward Midkiff, mailed a letter and a copy of the Court of
Appeal's order to Miller at the local jail where he had
been held during trial proceedings. Miller never received
this mailing because, in the meantime, he had been
transferred. Jail staff marked the mailing as undeliverable,
and it was returned to Midkiff at his office. Midkiff did not
ensure that Miller promptly received a copy of the
Court's order denying his appeal and did not file an
appeal to the Supreme Court of Virginia.
February 2002, allegedly before Miller learned that his
appeal had been denied in June 2001, he filed a complaint
with the Virginia State Bar ("VSB") about Midkiff s
failure to communicate with him. In a letter dated February
21, 2002, a VSB attorney notified Miller that the VSB would
initiate an investigation. The letter also stated:
"Please note that the duty of the [VSB] counsel assigned
to your complaint is to prosecute ethical misconduct, not to
represent or counsel you as a client." (Pet. Ex., at 41,
ECF No. 1.) Several months later, while still waiting for the
VSB to complete its investigation, Miller filed his initial
pro se state habeas petition on August 30, 2002.
"attorney negligence, however styled, does not provide a
basis for equitable tolling, " but tolling of the
habeas filing period under § 2244(d) may be
warranted "if the missed deadline results from attorney
misconduct that is not constructively attributable to the
petitioner, " such as where a petitioner proves
"that his attorney essentially 'abandoned'
him." Holland v. Florida, 560 U.S. 631, 659
(2010) (Alito, J., concurring). Tolling is appropriate in
such abandonment cases only where the attorney's conduct
rose to the level of an "extraordinary
circumstance" that prevented the petitioner from timely
filing the pleading at issue. Id. at 653. The
petitioner seeking such tolling must also demonstrate that
he, himself, exercised "reasonable diligence" in
pursuing his legal remedies. Id.
purposes of this opinion, the court will presume, without
finding, that Midkiff "abandoned" Miller as a
client, beginning on the date when Midkiff s letter about the
denial of the appeal was returned to him as undeliverable.
Midkiff s subsequent failure to notify Miller of the
appellate court's order or otherwise aid him in
preserving his option to appeal to the Supreme Court of
Virginia left Miller, unknowingly, without counsel for
several months. By the time Miller filed, his VSB complaint
about Midkiff in February 2002, more than a year after his
conviction, a reasonably diligent client would have contacted
the appellate court directly to learn the status of his
appeal. Moreover, the VSB attorney warned Miller in late
February 2002 that no one at the VSB was representing
Miller's interests, thus putting him on notice of the
need for him to protect those interests himself-either
through conducting pro se research or by procuring other
counsel. Accordingly, the court concludes that, at the most,
Miller is entitled to equitable tolling until the end of
February 2002, based on Midkiff s abandonment of him as a
when the court calculates Miller's one-year filing period
as beginning on March 1, 2002, his § 2254 petition is
unquestionably too late. Miller let 182 days of the federal
filing period expire before filing his first state
habeas petition on August 30, 2002, to toll the
clock.When the Circuit Court dismissed that
habeas petition on November 14, 2002, the federal
filing period began running again and expired 183 days later
on May 16, 2003. Miller allowed nearly twelve years to pass
before filing his first § 2254 petition in January 2015.
That petition, voluntarily withdrawn in July 2015, was not a
"properly filed application for State postconviction or
other collateral review" so as to qualify for tolling
under § 2244(d)(2). Moreover, Miller then waited another
year before filing his current § 2254 petition after the
passage of more than thirteen years since the conclusion of
his state court post conviction proceedings. Thus, the court
cannot find that he has shown due diligence in pursuing
available judicial remedies or extraordinary circumstances
preventing him from doing so in a much more timely fashion.
as one more potential basis for equitable tolling, Miller
argues that his continued confinement under these convictions
would be a miscarriage of justice because he is actually
innocent. "The miscarriage of justice exception applies
to a severely confined category: cases in which new evidence
shows 'it is more likely than not that no reasonable
juror would have convicted'" petitioner.
McQuiggin, 133 S.Ct. at 1933 (quoting Schlup v.
Delo. 513 U.S. 298, 329 (1995)). At the most, Miller
argues that the evidence against him was unreliable and
insufficient to support his guilt. He fails to point to any
new evidence that would cause it to be more likely than not
that no reasonable juror would have convicted him. Thus, he
fails to state a colorable claim that he is actually
innocent, and the miscarriage of justice exception cannot
excuse the untimeliness of his current petition.
conclusion, the court will summarily dismiss Miller's
§ 2254 petition as untimely filed. An appropriate order
will be Dated this day.
Clerk is directed to send copies of this memorandum opinion
and accompanying order to petitioner.
 Under Rule 4(b) of the Rules Governing
§ 2254 Cases, the court may summarily dismiss a §
2254 petition "[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court."
Miller filed an earlier habeas
petition in this court, Miller v. Commonwealth of
Virginia. No. 7:15CV00036 (W.D. Va. July 7, 2015); in
that case, after the respondent filed a motion to dismiss
with copies of state court pleadings and orders attached,
Miller moved for voluntary dismissal without prejudice, and
the court granted that motion.
Miller does not allege that his claims
are timely under § 2244(d)(1)(B), based on removal of a
constitutional impediment to filing; under §
2244(d)(1)(C), based on a right newly recognized by the
United States Supreme Court; or under § 2244(d)(1)(D),
based on newly discovered facts. Thus, the court must
calculate Miller's federal filing period under §
 In February 2003, the VSB notified
Miller by letter that Midkiff s failure to communicate with
him about the denial of his appeal constituted a violation of
professional ethics and Midkiff would face a hearing on that
finding in April 2003.
Miller also faults his trial attorney
for failing to provide him with information about
habeas deadlines. Counsel's alleged errors
regarding state post conviction matters, however, excuse a
litigant's procedural default only in limited
circumstances not present here. See, e.g..
Martinez v. Ryan. ___U.S.___, ___, 132 S.Ct. 1309,
1318 (2012) (holding that attorney errors in failing to raise
substantial ineffective assistance claims can constitute
"cause" to excuse procedural default of those
claims during "initial-review collateral
proceeding" and permit federal habeas