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Lovelace v. Clarke

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

November 1, 2017

MICHAEL D. LOVELACE, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          NORMAN K. MOON, UNITED STATES DISTRICT JUDGE.

         Michael D. Lovelace, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment by the Danville City Circuit Court. Respondent filed a motion to dismiss Lovelace's § 2254 petition, and Lovelace responded, making the matter ripe for disposition. After review of the record, I grant the motion to dismiss.

         I. Background

         On January 11, 2013, the Danville City Circuit Court entered a final order convicting Lovelace of robbery. The court sentenced him to ten years in prison. Lovelace appealed, but the Court of Appeals of Virginia dismissed his petition on February 11, 2014. Thereafter, on April 21, 2014, Lovelace filed a pro se petition for appeal in the Supreme Court of Virginia. The court refused review and denied a petition for rehearing because both filings were untimely.

         On May 15, 2013, while still pursuing direct review in the Court of Appeals of Virginia, Lovelace filed a pro se habeas petition in the Supreme Court of Virginia. The court dismissed his claims on November 22, 2013.

         On December 17, 2014, after the conclusion of his direct review proceedings, Lovelace filed a second state habeas petition in the Danville City Circuit Court. On December 1, 2015, the circuit court denied the petition. Lovelace then appealed portions of the denial to the Supreme Court of Virginia, but the court dismissed the petition on October 14, 2016 for failure to comply with Rule 5:17 of the Rules of the Supreme Court of Virginia.

         On March 21, 2017, Lovelace filed the current petition in this court.

         II. Time-Bar

         Under 28 U.S.C. § 2244(d)(1)(A), a petitioner must file his federal habeas petition within one year from when his conviction became final by the conclusion of direct review or the expiration of the time for seeking such review.[1]

         Lovelace's petition is time-barred. The Court of Appeals of Virginia dismissed Lovelace's initial direct appeal on February 11, 2014, and he did not perfect an appeal to the Supreme Court of Virginia until April 21, 2014. As Lovelace failed to file a timely appeal to the Supreme Court of Virginia, his conviction became final on March 13, 2014, thirty days after the entry of the order of the Court of Appeals of Virginia. See Va. Sup. Ct. R. 5:17(a)(2) (requiring notice of appeal within thirty days); Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002). Further, Lovelace did not file the current § 2254 petition until March 21, 2017, three years after his conviction became final. Therefore, the petition is time-barred unless tolling or Lovelace's actual innocence entitles his claims to federal merits review.

         A. Tolling

         A petitioner can “toll” the federal habeas statute of limitations in two ways: statutory tolling and equitable tolling. Statutory tolling occurs when a petitioner pursues a “properly filed application for State post-conviction or other collateral review” within the federal limitations period. 28 U.S.C. § 2244(d)(2). Equitable tolling occurs only if a petitioner shows “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

         Lovelace's properly filed direct appeal to the Court of Appeals of Virginia statutorily tolled the federal habeas limitations period from January 11, 2013 until March 13, 2014. However, Lovelace is not entitled to tolling during his petition for appeal or his motion for reconsideration in the Supreme Court of Virginia because both filings were untimely. See Va. Sup. Ct. R. 5:17(a)(2). Therefore, the statute of limitations ran for 278 days between March 13, 2014, when Lovelace's conviction became final under 28 U.S.C. § 2244, and December 17, 2014, when Lovelace filed his second state habeas petition.

         On December 2, 2015, after the circuit court dismissed his second habeas petition, the statute of limitations began to run again because Lovelace's habeas appeal was improperly filed: his assignments of error were insufficient under Va. Sup. Ct. R. 5:17(c)(1)(iii). Thereafter, the limitations period continued to run for an additional 475 days until Lovelace filed the current petition. In total, the ...


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