United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon, United States District Judge
Grant Harris, a Virginia inmate proceeding with counsel,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 to challenge his criminal judgment entered
by the Henry County Circuit Court. This matter is before the
court for preliminary review, pursuant to Rule 4 of the Rules
Governing Section 2254 Cases. After reviewing the record, the
court dismisses the petition as time-barred.
October 7, 2014, after pleading guilty, the Henry County
Circuit Court convicted Harris of twenty-eight counts of
possessing child pornography and sentenced him to 140 years
of incarceration, with all but 7 years and 1 month suspended.
Harris did not appeal. On February 16, 2016, more than a year
after his conviction became final, Harris filed a petition
for a writ of habeas corpus with the Supreme Court of
Virginia. The court dismissed his habeas petition on October
28, 2016. Harris filed the instant federal habeas petition on
October 20, 2017.
court conditionally filed the petition, advised Harris that
the petition appeared to be untimely filed, and provided him
the opportunity to explain why the court should consider it
timely filed. Harris did not respond.
petitions filed under § 2254 are subject to a one-year
limitations period. 28 U.S.C. §
2244(d)(1). A petitioner must demonstrate either the
timeliness of his petition pursuant to § 2244(d) or that
the principle of equitable tolling applies in his case.
See Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002);
Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000).
Otherwise, an untimely petition may be dismissed by a federal
district court. See Hill, 277 F.3d at 707.
statute of limitations began to run in Harris's case on
November 6, 2014, when his conviction became
final. Therefore, Harris had until November 6,
2015, to file a timely federal habeas petition. Harris did
not meet this deadline; in fact, by that date, Harris had yet
to file his state habeas petition. Accordingly, Harris's
petition is barred unless he demonstrates grounds for
equitable tolling of the one-year statute of limitations.
district court may apply equitable tolling 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) (citing
Harris, 209 F.3d at 330). The petitioner must
demonstrate that some action by the respondent or “some
other extraordinary circumstance beyond his control”
prevented him from complying with the statutory time limit,
despite his exercise of “reasonable diligence in
investigating and bringing the claims.”
Harris, 209 F.3d at 330 (citing Miller v. N.J.
State Dep't of Corrs., 145 F.3d 616, 618 (3d Cir.
1998)). An inmate asserting equitable tolling
“‘bears a strong burden to show specific
facts'” that demonstrate he fulfills both elements
of the test. Yang v. Archuleta, 525 F.3d 925, 928
(10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d
1304, 1307 (11th Cir. 2008)). Generally, the petitioner is
obliged to specify “‘the steps he took to
diligently pursue his federal claims.'”
Id. at 930 (quoting Miller v. Marr, 141
F.3d 976, 978 (10th Cir.1998)).
being given the opportunity to argue the timeliness of his
petition, Harris does not allege any ground that warrants
equitable tolling. Harris filed his federal habeas petition
more than one year after the judgment became final; thus, the
court dismisses his petition as untimely filed. See
Hill, 277 F.3d at 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).
 The one-year period begins to run on
the latest of four dates:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for