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Thomas v. Clark

United States District Court, W.D. Virginia, Roanoke Division

July 23, 2018

DE'ANDRE LAMAR THOMAS, Petitioner,
v.
HAROLD CLARK, Respondent.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

         De'Andre 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.

         I.

         On 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.[1] 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.

         II.

         On June 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.

         III.

         Thomas' 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, 418 (2005)).

         The 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 ...


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