United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
C. CACHERIS, UNITED STATES DISTRICT JUDGE
Terrell Randall, a Virginia inmate proceeding pro se, has
filed a petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254 (2012), challenging the lawfulness of his
conviction in the Williamsburg/James City County Circuit
Court. By Order dated June 6, 2017, petitioner was advised
that his petition was untimely and was directed to show cause
why the petition should not be dismissed as barred by the
statute of limitations pursuant to 28 U.S.C. § 2244(d).
Petitioner responded to that Order on June 29, 2017. For the
following reasons, petitioner's response fails to comply
with the June 6, 2017 Order, and this civil action will be
dismissed, with prejudice, as barred by the statute of
petition for a writ of habeas corpus must be dismissed if
filed later than one year after (1) the judgment becomes
final; (2) any state-created impediment to filing a habeas
petition is removed; (3) the United States Supreme Court
newly recognizes the constitutional right asserted: or (4)
the factual predicate of the claim could have been discovered
with due diligence. Id. § 2244(d)(1)(A)-(D). In
calculating the one-year period, a court must exclude the
time during which petitioner's state collateral
proceedings were pending. See 28 U.S.C. § 2244(d)(2).
Notably, a federal habeas petition filed after or during the
pendency of a direct appeal will not toll §
2244(d)(1)'s one year limitation period because "an
application for federal habeas corpus review is not an
application for State post-conviction or other collateral
review within the meaning of 28 U.S.C. §
2244(d)(2)." Duncan v. Walker. 533 U.S. 167,
181 (2001) (internal quotation marks omitted).
was convicted by a jury in the Williamsburg/James City County
Circuit Court on December 22, 1998. Petitioner filed a direct
appeal in the Virginia Court of Appeals, which was denied.
Petitioner subsequently appealed to the Supreme Court of
Virginia, which, according to information contained on the
Supreme Court of Virginia's Case Status and Information
web page, refused his appeal on October 6, 1999. Therefore,
at the very latest, petitioner's conviction became final
on January 4, 2000, 90 days after entry of the judgment in
the Supreme Court of Virginia, the last date he could have
petitioned the Supreme Court of the United States for a writ
of certiorari. See U.S. Sup. Ct. R. 13(1). Petitioner states
that following his direct appeal he filed a petition for
habeas corpus in the Supreme Court of the United States,
which was denied for failure "to exhaust state
remedies." It appears that petitioner is actually
referring to a federal habeas petition filed in this Court,
l:00-cv-01698-JCC, on October 13, 2000, which was dismissed
as unexhausted by Order dated November 27, 2000.
February 6, 2001, petitioner filed his first state habeas
petition, case number 010403, in the Supreme Court of
Virginia, which resulted in a procedural dismissal on April
27, 2001. By then, 399 days had elapsed since
petitioner's conviction became final on January 4, 2000,
and the federal statute of limitations had expired pursuant
to § 2244. As such, the pendency of the state habeas
proceeding could no longer toll the federal limitations
period. See Ferguson v. Palmateer, 321 F.3d 820, 823
(9th Cir. 2003) ("[S]ection 2244(d) does not permit the
reinitiation of the limitations period that has ended before
the state petition was filed.").
to § 2244, the instant petition must be considered
untimely unless petitioner can establish that the statute of
limitations does not apply or should otherwise be tolled. See
Hill v. Braxton, 277 F.3d 701, 706-07 (4th Cir.
2002) (requiring notice and the opportunity to respond before
a sua sponte dismissal under § 2244(d)). To
qualify for equitable tolling, petitioner must demonstrate
that (1) he has pursued his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented
timely filing. Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005). Typically, a petitioner must specify the steps he
took in diligently pursuing his federal claim and
"demonstrate a causal relationship between the
extraordinary circumstance on which the claim for equitable
tolling rests and the lateness of his filing."
Spencer v. Sutton. 239 F.3d 626, 630 (4th Cir.
2001); Valverde v. Stinson, 224 F.3d 129, 134 (2d
Cir. 2000). Thus, equitable tolling is only available in
"those rare instances where - due to circumstances
external to the party's own conduct - it would be
unconscionable to enforce the limitation against the
party." See Hill, 277 F.3d at 704 (internal
quotation marks omitted).
argues that the statute of limitations should not bar the
instant petition because petitioner was required to use a
standard form petition to apply for relief under § 2254,
and the form did not provide specific enough instructions on
how to proceed. Dkt. No. 6 at 1-2. In addition, petitioner
claims that he did not know what offenses he was convicted of
because he did not receive his case file and transcript until
October 18, 1999, and he did not know he could obtain those
documents until he spoke to other prisoners. Id.
Notwithstanding those arguments, petitioner concedes that the
standard § 2254 complaint form that he used to file his
October 13, 2000 federal habeas petition explained §
2244, and, as a result, petitioner attempted to file his
federal habeas petition within one year of the denial of his
direct appeal on October 6, 1999. Id. at 2.
Petitioner further states that when his October 6, 1999,
habeas petition was dismissed for failure to exhaust state
remedies petitioner assumed he was time barred, so he
"was not in a rush to file the state habeas petition in
the Supreme Court of Virginia on February 6, 2001."
addition, petitioner cites Rule 4 of the Rules Governing
Section 2254 Cases for the proposition that all petitioners
for whom counsel is appointed shall be represented at every
stage of the proceedings. Id. at 3. According to
petitioner, defense counsel on direct appeal advised
petitioner that his most reasonable recourse after denial in
the Supreme Court of Virginia was to carry the matter to the
Supreme Court of the United States. Id. at 1-2.
Petitioner states that counsel further advised petitioner
that he had never sought admission before the Supreme Court,
and petitioner would need alternative counsel if he wished to
appeal to that Court. Id. at 2-3. In
petitioner's view, he should be afforded the opportunity
to respond to the June 6, 2017 Order before his petition is
dismissed because he had not been previously provided with
instructions on how to proceed. Id. at 3. Petitioner
contends that his efforts to comply with court procedures
should excuse the untimeliness of his petition. Id.
these circumstances, petitioner has failed to demonstrate
that he pursued his rights diligently but some extraordinary
circumstance stood in his way and prevented his timely filing
a state habeas petition. Pace, 544 U.S. at 418.
Petitioner's conviction became final on January 4, 2000,
but he did not file his federal habeas petition until nearly
a year later on October 13, 2000. By his own admission,
petitioner was aware of the limitations period in § 2244
at the time he filed his federal habeas petition. Dkt. No. 6
at 2. When his federal habeas petition was dismissed as
unexhausted by Order dated November 27, 2000, petitioner
still had more than one month to file a state habeas petition
in the Supreme Court of Virginia, but he waited over two
months to file, until February 6, 2001. Even if petitioner
had not been aware of § 2244, his ignorance of the law,
absent some extraordinary circumstance that is missing from
this case, would not have excused his untimely filing. See
Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)
(stating that ignorance of the law, even by pro se prisoners,
generally does not excuse untimely filing).
the failure to file the petition was a result of
petitioner's own lack of diligence, equitable tolling is
not appropriate. See Rouse v. Lee,339 F.3d 238, 246
(4th Cir. 2003) ("Principles of equitable tolling do not
extend to garden variety claims of excusable neglect.").
Here, petitioner's failure to timely file a state habeas
petition within the one year limitations period was not
external to his own conduct, and his misunderstanding of his
attorney's letter concerning options for direct appeal
does not present the kind of ...