United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge.
Aron Miller, a Virginia inmate proceeding pro se,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 to challenge his criminal judgment entered
by the Pittsylvania 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.
March 24, 2011, after Miller pled guilty, the Pittsylvania
County Circuit Court convicted Miller of armed burglary,
malicious bodily injury, two counts of robbery, and five
firearm offenses. The court sentenced him to 77 years of
incarceration, with all but 12 years suspended. Miller did
not appeal. On May 20, 2016, more than five years after his
conviction became final, Miller filed a petition for a writ
of habeas corpus with the Pittsylvania County Circuit Court.
The court dismissed his petition, and Miller appealed to the
Supreme Court of Virginia, which refused his appeal on April
13, 2017. Miller filed the instant federal habeas petition on
September 25, 2017.
court conditionally filed the petition, advised Miller that
the petition appeared to be untimely filed, and provided him
the opportunity to explain why the court should consider it
timely filed. Miller did not respond concerning the
timeliness of his petition.
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 Miller's case on
May 26, 2011, when his conviction became final. See
Va. Sup. Ct. R. 5:9 (requiring an appeal to be filed within
thirty days after the entry of final judgment); Clay v.
United States, 537 U.S. 522, 525 (2003) (stating a
conviction becomes final once the availability of direct
review is exhausted). Therefore, Miller had until May 25,
2012, to file a timely federal habeas petition. Miller did
not meet the deadline.
argues that his petition is timely under § 2244(d)(1)(C)
because the controlling law, Brown v. Commonwealth,
284 Va. 538, 733 S.E.2d 638 (2012), was not decided until
after his conviction. In order to obtain a belated
commencement of the limitation period under §
2244(d)(1)(C), a petitioner “must show: (1) that the
Supreme Court recognized a new right; (2) that the right
‘has been . . . made retroactively applicable to cases
on collateral review'; and (3) that he filed his motion
within one year of the date on which the Supreme Court
recognized the right.” United States v.
Mathur, 685 F.3d 396, 398 (4th Cir. 2012) (quoting
Dodd v. United States, 545 U.S. 353, 358
(2005)). However, § 2244(d)(1)(C) does not
apply here because Brown was not decided by the
United States Supreme Court. See, Mathur, 685 F.3d
at 398. Accordingly, Miller'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)).
asserts that he is entitled to equitable tolling because
Brown was not made available in the prison law
library until June 2014. However, “a petitioner must
present evidence regarding the steps he took to diligently
pursue his remedies during the time that he was allegedly
deprived of access to legal materials.” Id.
(citing Miller v. Marr, 141 F.3d 976, 978 (10th
Cir.1998); Cross-Bey v. Gammon, 322 F.3d 1012, 1015
(8th Cir. 2003) (rejecting equitable tolling where petitioner
alleged lack of legal knowledge and legal resources),
cert. denied, 540 U.S. 971 (2003); Frye v.
Hickman, 273 F.3d 1144, 1146 (9th Cir. 2002) (as
amended) (recognizing that the lack of access to library
material does not automatically qualify as grounds for
equitable tolling), cert. denied, 535 U.S. 1055
(2002)); Miller v. N.J. State Dep't of Corrs.,
145 F.3d 616, 618 (3d Cir. 1998) (holding that, for equitable
tolling to apply, petitioner must show that he exercised
reasonable diligence in bringing or investigating the
claims). Therefore, despite being given the opportunity to
argue the timeliness of his petition, Miller does not allege
any ground that warrants equitable tolling.
filed his federal habeas petition more than one year after
the judgment became final, and, 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
reasons stated, the court will grant the motion to dismiss