United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Daniel Bethel, a Virginia inmate proceeding pro se, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 to challenge the judgment entered by the Circuit
Court of Pittsylvania County. This matter is before the court
for preliminary review, pursuant to Rule 4 of the Rules
Governing § 2254 Cases. After reviewing the record, the
court dismisses the petition as time barred.
2, 2009, the Circuit Court of Pittsylvania County sentenced
Petitioner to more than twenty-two years' incarceration
for drug- and firearm-related crimes. Petitioner's direct
appeals concluded at the Supreme Court of Virginia on
November 1, 2010.
March 23, 2012, Petitioner filed a petition for a writ of
habeas corpus with the Circuit Court of Pittsylvania County,
which denied the petition. Petitioner appealed to the Supreme
Court of Virginia, which refused the appeal on March 7, 2016.
filed the instant petition on March 2, 2017. See R. Gov.
§ 2254 Cases 3(d) (describing the prison-mailbox rule).
The court conditionally filed the petition, advised
Petitioner that the petition appeared to be untimely filed,
and provided him the opportunity to explain why the court
should consider it timely filed. Petitioner provides the
dates of various events but does not argue the timeliness of
petitions filed under § 2254 are subject to a one-year
period of limitation. 28 U.S.C. §
2244(d)(1). The applicable period for the instant
petition began to run from the date on which the judgment of
conviction became final. 28 U.S.C. § 2244(d)(1)(A); see
Clay v. United States. 537 U.S. 522, 524 (2003)
(holding a conviction becomes final once the availability of
direct review is exhausted). 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(dX2); see Wall
v. Kholi. 562 U.S. 545, 558-59 (2011) (discussing
proceedings that qualify as collateral review).
§ 2254 petition is untimely under § 2244(d)(1)(A).
Petitioner's conviction became final on January 31, 2011,
when the time expired for Petitioner to note an appeal from
the Supreme Court of Virginia to the United States Supreme
Court. See U.S. Sup. Ct. R. 13(1) (stating appellant must
file a petition for a writ of certiorari within ninety days
of the judgment being appealed). Petitioner filed his state
habeas petition in March 2012, more than 400 days after his
judgment became final. Because the federal limitations period
had already expired by the time Petitioner filed his state
habeas petition, tolling under 28 U.S.C. § 2244(d)(2)
does not apply. See, e.g.. Minter v. Beck.
230 F.3d 663, 665 (4th Cir. 2000) (recognizing that state
habeas petitions cannot revive a period of limitations that
had already expired). Accordingly, Petitioner did not file
the instant petition within one year of when the criminal
judgment became final.
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).
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, the court does 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). Accordingly, Petitioner filed his
federal habeas petition more than one year after the judgment
became final, Petitioner is not entitled to equitable
tolling, and the petition must be dismissed. See Hill v.
Braxton. 277 F.3d 701, 707 (4th Cir. 2002) (recognizing
a district court may summarily dismiss a § 2254 petition
if a petitioner fails to make the requisite showing of
timeliness after the court notifies petitioner that the
petition appears untimely and allows an opportunity to
provide any argument and evidence).
foregoing reasons, the court dismisses the petition for a
writ of habeas corpus as time barred. Based upon the
court's finding that Petitioner has not made the
requisite substantial showing of a denial of a constitutional
right as required by 28 U.S.C. § 2253(c) and Slack
v. McDaniel. 529 U.S. 473, 484 (2000), a certificate of
appealability is denied. ...