Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Miller v. Virginia Department of Corrections

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

December 22, 2016

LOWELL MILLER, Petitioner,


          Hon. Glen E. Conrad Chief United States District Judge

         Lowell 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.[1]


         Miller's submissions and court records[2] 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.

         On 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.

         Miller's 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 trial proceedings.


         Habeas 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).

         Miller's § 2254 petition is clearly untimely filed under § 2244(d)(1)(A).[3] 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.

         The 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).

         Furthermore, 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.

         Equitable 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).

         Miller 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).

         Miller 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.