United States District Court, W.D. Virginia, Roanoke Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
Lamar Thomas, a Virginia inmate proceeding pro se,
filed a petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254, challenging the validity of his
confinement on a judgment in the Pittsylvania County Circuit
Court. After review of the record, the court will dismiss the
petition as untimely.
January 5, 2011, the Pittsylvania County Circuit Court
convicted Thomas of two counts of robbery, one count of
burglary, and two counts of use of a firearm in commission of
a felony. The court sentenced him to sixty-eight
years' imprisonment, with forty-five years suspended.
Thomas appealed to the Court of Appeals of Virginia but was
unsuccessful. Thomas' attorney then failed to perfect his
direct appeal to the Supreme Court of Virginia. Thomas filed
a state habeas petition in the Supreme Court of Virginia
seeking permission to file a delayed direct appeal in that
court. The court refused the petition.
27, 2018, Thomas filed the current petition, alleging that
trial counsel was ineffective for failing to investigate
mitigating factors that could have produced a different
outcome at trial and sentencing.
claim is time-barred. Under the Anti-terrorism Effective
Death Penalty Act (AEDPA), a one-year period of limitation
for federal habeas corpus runs from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). A petitioner can
“toll” the federal habeas statute of limitation
in two ways: statutory tolling and equitable tolling. Section
2244(d)(2) tolls the federal limitation period during the
time in which “a properly filed application for State
post-conviction or other collateral review . . . is
pending.” Meanwhile, 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,
circuit court sentenced Thomas on February 14, 2011, and
Thomas' direct review proceedings concluded when the
Court of Appeals of Virginia denied his appeal on September
7, 2011. Thomas failed to properly appeal to the Supreme
Court of Virginia; therefore, his judgment became final on
October 7, 2011, when the time for appeal to the Supreme
Court of Virginia expired. See Va. Sup. Ct. R.
5:9(a) (requiring a petitioner to file a notice for appeal
within thirty days of the entry of judgment); Gonzalez v.
Thaler, 565 U.S. 134, 149 (2012) (holding that, under
§ 2244(d)(1)(A), the judgment becomes final “when
the time for pursuing direct review in [the Supreme ...