United States District Court, W.D. Virginia, Roanoke Division
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 ...