United States District Court, W.D. Virginia, Roanoke Division
MICHAEL D. LOVELACE, Petitioner,
HAROLD W. CLARKE, Respondent.
K. MOON, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
March 21, 2017, Lovelace filed the current petition in this
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
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
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)).
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.
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 ...