United States District Court, E.D. Virginia, Alexandria Division
ANTHONY J. TRENGA, UNITED STATES DISTRICT JUDGE.
Lamont McMillian, a Virginia inmate proceeding pro se, has
filed a petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254, challenging the constitutionality of
convictions entered in the Circuit Court of the City of
Chesapeake. The matter is before the Court on the
respondent's Motion to Dismiss the petition.
December, 2009, McMillian was convicted following a jury
trial of murder, grand larceny, and use of a firearm in the
commission of a felony. He received an aggregate sentence of
68 years imprisonment with ten years suspended. Case Nos.
CR07-2291, -2292 and -2310. The convictions were affirmed in
an unpublished memorandum opinion on March 1, 2011.
McMillian v. Commonwealth. R. No. 0455-10-1 (Va. Ct.
App. Mar. 1, 2011). On August 26, 2011, the Supreme Court of
Virginia refused McMillian's petition for further appeal.
McMillian v. Commonwealth. R. No. 110592 (Va. Aug.
8, 2005, McMillian filed a petition for unspecified relief in
the Circuit Court of the City of Chesapeake. Case No.
CL15001143-00. It appears from the Virginia Courts Case
Information System that the petition may still remain
pending, as the website does not indicate its disposition. On
August 21, 2015, McMillian also filed a complaint for
unspecified relief in the same court. Case No. 15001944-00.
In that instance judgment was entered for the defendant on
October 27, 2015, and McMillian filed an appeal on November
filed the instant petition for habeas corpus relief on
February 17, 2017.  In it, he makes the following
1. The trial court abused its discretion by admitting
evidence of other crimes.
2. He was the victim of prosecutorial misconduct when the
Commonwealth proffered false information to the trial court
regarding other crimes he allegedly committed.
3. When "the prejudicial presentment of [evidence of]
other crimes being committed" is discounted, the
remaining evidence is insufficient to sustain the
30, 2017, respondent filed a Rule 5 Response and a Motion to
Dismiss the petition with a supporting brief, and provided
petitioner with the notice required by Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule
7K. [Dkt. No. 16 -19] Petitioner subsequently filed a reply
in opposition. [Dkt. No. 20] Accordingly, this matter is ripe
advances several arguments regarding the adjudication of this
petition, all of which are meritorious. The Court finds that
the threshold and hence dispositive consideration is fact
that the petition is time-barred.
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 petition
is removed; (3) the United States Supreme Court recognizes
the constitutional right asserted; or (4) the factual
predicate of the claim could have been discovered with due
diligence. 28 U.S.C. § 2244(d)(1)(A)-(D). In this case,
the Supreme Court of Virginia refused McMillian's
petition for review on direct appeal on August 26, 2011.
McMillian v. Commonwealth. R. No. 110592. Therefore,
the conviction became final ninety (90) days later, on
November 24, 2011, when the time expired during which he
could have petitioned the United States Supreme Court for a
writ of certiorari. See U.S. Sup. Ct. R. 13(1) (petitions for
review are timely filed within 90 days of the entry of
judgment by a state court of last resort); see also
Lawrence v. Florida. 549 U.S. 327, 333 (2007). Thus, the
§2254(d) one-year limitations period began to run on
calculating the one-year limitations period, the Court
generally must exclude the time during which properly-filed
state collateral proceedings pursued by a petitioner were
pending. See 28 U.S.C. § 2244(d)(2); Pace
v. DiGuslielmo. 544 U.S. 408 (2005) (determining that
the definition of "properly filed" state collateral
proceedings, as required by § 2244(d)(2), is based on
the applicable state law as interpreted by state courts).
Here, however, McMillian did not commence postconviction
proceedings until August and October of 2015, when he filed
the two actions in the trial court described above. Since by
then well over three years had elapsed since his convictions
had become final, the pendency of those state actions could
no longer toll the 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."); Webster v. Moore. 199
F.3d 1256, 1259 (11th Cir. 2000) (holding that a state
postconviction motion filed after expiration of the
limitations period cannot toll the period, because there is
no period remaining to be tolled); Rashid v.
Khulmann. 991 F.Supp. 254, 259 (S.D.N.Y. 1998)
("Once the limitations period is expired, collateral
petitions can no longer serve to avoid a statute of