United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge
Allen Dutton, a Virginia inmate proceeding pro se, filed a
document the court construed as a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 that
challenges the criminal judgment entered by the Circuit Court
of Carroll 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.
February 20, 2008, the Circuit Court of Carroll County
sentenced Petitioner to, inter alia, life
imprisonment for murder. Petitioner's direct appeals
concluded at the Supreme Court of Virginia on July 20, 2009.
On July 26, 2010, Petitioner filed a petition for a writ of
habeas corpus with the Supreme Court of Virginia, which
denied the petition on January 7, 2011.
court received the instant petition on June 5, 2017. 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 has provided the dates
of various events but has not argued the timeliness of the
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(d)(2); 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).
The limitations period began when Petitioner's conviction
became final in October 2009 after the time expired to 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). The limitations period
was tolled until January 7, 2011, when the Supreme Court of
Virginia dismissed his state habeas petition. However,
Petitioner did not commence this action until nearly six and
a half years later. 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 (200), a certiscate of
appealability is denied.