United States District Court, E.D. Virginia, Alexandria Division
Case, a Virginia inmate proceeding pro se, has filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, seeking relief from his conviction of the
malicious wounding of a police officer in the City of
Hopewell Circuit Court. On January 8, 2018, respondent filed
a Motion to Dismiss the petition with a supporting brief and
exhibits, and provided petitioner with the notice required by
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)
and Local Rule 7K. [Dkt. No. 7-10] After receiving an
extension of time, petitioner filed a reply in opposition on
February 27, 2018. [Dkt. No. 13] Accordingly, this matter is
ripe for disposition. After careful consideration, the Motion
to Dismiss must be granted, and the petition must be
dismissed, as time-barred.
a jury trial, Case was convicted on September 9, 2013 of the
malicious wounding of Richard Wade, a detective with the City
of Hopewell Police Department. Pet. ¶ 33. On January 8,
2014, he was sentenced to serve a term of 26 years
incarceration. Case No. CR12-182-00.
prosecuted a direct appeal, arguing that: (1) the trial court
erred in refusing to strike the evidence as insufficient
because it did not establish that the victim was identifiable
as a law enforcement officer; and (2) the trial court erred
in refusing to set aside the verdict as contrary to Virginia
law for the same reason. The appeal was denied on December
18, 2014, and a three-judge panel refused further review on
April 27, 2015. Case v. Commonwealth, R. No.
0227-14-2 (Va. Ct. App. Dec. 18, 2014); Resp. Ex. 1. The
Supreme Court of Virginia refused Case's petition for
appeal on December 29, 2015. Case v. Commonwealth,
R. No. 150801 (Va. Dec. 29, 2015); Pet. Ex. L.
filed a petition for a state writ of habeas corpus in the
Supreme Court of Virginia on January 17, 2017. On March 21,
2017 the court dismissed the petition on the holding
that"... the petition was not filed within one year from
the December 29, 2015, final disposition of petitioner's
direct appeal. Code § 8.01-654(A)(2). Accordingly, the
Court is of the opinion that the petition was not timely
filed. It is therefore ordered that the petition be
dismissed." Case v. Dir, . Dep't of
Corrections. R. No. 170074 (Va. Mar. 21, 2107); Resp.
Ex. B. Case then turned to the federal forum and filed the
instant application for § 2254 relief on June5,
petition for a writ of habeas corpus pursuant to § 2254
must be dismissed if it was filed later than one year after
(1) the judgment at issue became final; (2) any state-created
impediment to filing a petition was removed; (3) the United
States Supreme Court recognized 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 Case's petition for review on direct
appeal on December 29, 2015. Therefore, the conviction became
final ninety (90) days later, on March 28, 2016, when the
time expired during which Case 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 that date.
calculating the one-year limitations period, a federal court
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). The definition of
"properly filed" in this context is based on
applicable state law as interpreted by state courts. Pace
v. DiGuglielmo, 544 U.S. 408 (2005). Accordingly,
Case's state habeas corpus application was not
"properly filed, " because the Supreme Court of
Virginia expressly determined that it was barred by the
statute of limitations set out in Virginia Code §
8.01-654(A)(2). Because the petition was not "properly
filed, " it did not act to toll the § 2254(d)
limitations period. See Artuz v. Bennett, 531 U.S.
4, 8 (2000) (holding that a state collateral proceeding is
not "properly filed" for purposes of tolling the
federal limitations period if it is filed untimely). The
limitations period in this case thus ran unchecked from March
28, 2016, the date the conviction at issue became final,
until this federal petition was filed on June 5, 2017. Since
that period exceeded the one-year limitations period by 68
days, this petition is barred by the statute of limitations
unless petitioner can establish that the statute of
limitations does not apply or should otherwise be tolled.
face of the petition and again in his reply to the Motion to
Dismiss, petitioner argues that he attempted to file a
petition for a state writ of habeas corpus in the Hopewell
Circuit Court on January 25, 2016, but the accompanying
motion to proceed in forma pauperis was denied on
March 9, 2016 for his failure to comply with Va. Code §
8.01-691, entitled "Payment of filing fees and costs by
prisoners; when in forma pauperis status is granted." He
argues that the Virginia court misapplied that provision in
denying him in forma pauperis status, and that as a
result the §2254(d) statute of limitations should be
deemed to have been tolled when his habeas petition was
received by the Hopewell Circuit Court. [Dkt. No. 13]
petitioner does not use the term, his argument might be
liberally construed in deference to his pro se status as
seeking equitable tolling of the limitations period. The
United States Supreme Court has established that equitable
tolling is applicable to the § 2244(d)(2) limitations
period. See Holland v. Florida, 560 U.S. 631 (2010)
("Now, like all 11 Courts of Appeals that have
considered the question, we hold that § 2244 (d) is
subject to equitable tolling in appropriate cases."). To
qualify for equitable tolling, a petitioner must demonstrate
both (1) that he had been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and
prevented timely filing. Id. at 649, citing Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005). A petitioner
asserting equitable tolling '"bears a strong burden
to show specific facts'" that demonstrate
fulfillment of both elements of the test. Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting
Brown v. Barrow, 512 F.3d 12304, 1307 (11th Cir.
2008)). The petitioner generally is obliged to specify the
steps he took in diligently pursuing his federal claim.
Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir.
2001); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.
1998). In addition, the petitioner must "demonstrate a
causal relationship between the extraordinary circumstance on
which the claim for equitable tolling rests and the lateness
of his filing, a demonstration that cannot be made if the
petitioner, acting with reasonable diligence, could have
filed on time notwithstanding the circumstances."
Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.
2000); see also. Rouse v. Lee, 339 F.3d
238, 246 (4th Cir. 2003).
extraordinary relief of equitable tolling is not warranted in
this case for three reasons. First, the Case Status and
Information website of the Virginia court system does not
reflect that Case ever actually filed a habeas petition in
the Hopewell Circuit Court; apparently, the denial of his in
forma pauperis application resulted in the
accompanying petition being rejected without being deemed
filed. Since the petition was never filed, it could not act
to toll the limitations period pursuant to § 2244(d)(2).
Moreover, even if that were not so, Case could not prevail on
his argument that this Court should reject what he
characterizes as the state court's misapplication of Va.
Code § 8.01-691, because federal courts look to state
court interpretations of state law in determining whether a
state proceeding was "properly filed" for purposes
of tolling the statute of limitations. Pace, 544
U.S. at 408. Lastly, the events Case describes do not warrant
equitable tolling because he cannot show that he acted
diligently. The Hopewell Circuit Court issued its order
denying Case's motion to proceed in forma
pauperis in his habeas proceeding on March 9, 2016, but
Case did not file his application for habeas relief in the
Supreme Court of Virginia until January 17, 2017, over ten
months later. Had Case acted more diligently, that second
state habeas petition would not have been dismissed as
untimely, and would have acted to toll the federal
limitations period. Thus, Case could have filed his federal
petition on time despite the dismissal of his petition by the
Hopewell Circuit Court had he acted more diligently, and as a
result that circumstance does not warrant equitable
tolling. Rouse, 339 F.3d at 246.
includes an argument in his brief that Case's claim of
prosecutorial misconduct does not excuse the untimeliness of
this petition. A fair reading of the petition would appear to
indicate that the claim of a Brady violation is
offered as a substantive basis for habeas corpus relief,
rather than as a basis for equitable tolling. Nonetheless,
the claim in any event suffices to do neither, because it
fails on the merits for the reasons discussed by respondent.
[Dkt. No.9 at 4-5]
petitioner has failed to demonstrate that it "would be
unconscionable to enforce the limitation period against [him
or that] gross injustice would result." Rouse,
339 F.3d at 246. Accordingly, this ...