United States District Court, E.D. Virginia, Norfolk Division
MAGISTRATE JUDGED REPORT AND RECOMMENDATION
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE
Sir Lord Ismial Holmes ("Petitioner" or
"Holmes") filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 on April 9, 2018.
(EFC No. 1). The Hampton Circuit Court convicted Holmes of
voluntary manslaughter and sentenced him to a total of nine
years' incarceration. Holmes' federal habeas corpus
petition does not challenge his underlying conviction, but
alleges that his sentence is being unlawfully executed by the
Virginia Department of Corrections. He argues that he has not
received credit for time served while he was awaiting trial,
and asks the court to order a "legal update sheet"
with the credits he claims due. This matter was referred to
the undersigned United States Magistrate Judge pursuant to 2
8 U.S.C. §§ 636(b)(1)(B) and (C), and Rule 72(b) of
the Federal Rules of Civil Procedure for a report and
Holmes' petition is time-barred and he has not stated any
basis to toll the limitations period or excuse his
untimely-filing, the undersigned recommends that the Court
dismiss the petition.
STATEMENT OF THE CASE
Hampton Circuit Court convicted Holmes of voluntary
manslaughter, and sentenced him to incarceration for a period
of nine years on September 26, 2013. On November 21, 2017,
Holmes filed a state habeas petition, which was dismissed by
the Supreme Court of Virginia in a final order dated February
15, 2018. Holmes v. Clarke, Record No. 171551 (Va.,
Feb. 15, 2018) (slip op.). On April 9, 2018, Holmes filed his
current federal Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody. Holmes'
federal habeas corpus petition argues that he has not
received credit for time spent in pretrial detention and as a
result, he would be subjected to a longer period of
incarceration than the sentencing court intended. Pet. (ECF
No. 1 at 18).
filed a Rule 5 Answer and Motion to Dismiss with an
accompanying Brief in Support of Motion to Dismiss and Rule 5
Answer on July 11, 2018. (ECF No. 14-16). Respondent's
brief argues that Holmes' petition is untimely and no
tolling exception applies, and that Petitioner's claims
lack merit. (ECF No. 16) . Petitioner has not responded, and
the time for response has now expired. After reviewing
Holmes' Petition and Respondent's Motion to Dismiss,
this Report finds that his federal petition is time-barred.
Holmes' pleadings do not allege any basis to overcome
this impediment and obtain federal review of his sentence.
RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF
Habeas Petition is Time-Barred.
federal habeas corpus petition is time-barred. In order for a
federal court to review a state court ruling under a habeas
corpus petition, that petition must be filed within the one
year statute of limitations set forth in 2 8 U.S.C. §
2244(d)(1). The statute lists four possible starting points
for the statute of limitation to begin running, the fourth of
which applies to this case: "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)(D). Holmes' claim relates to
an alleged sentencing calculation error which was first
revealed to him in a Legal Update dated March 18, 2014, which
he received upon his transfer to St. Brides Correctional
Center in September of that year. (See ECF No. 16-1 at 6) .
Petitioner did not file his federal petition until April 9,
2018, nearly four years after he learned of the alleged error
and almost 3 years after the statute of limitations on the
federal petition had run. (ECF No. 1) . Although Holmes'
claim is clearly barred, he may overcome the bar by alleging
facts suggesting he is entitled to equitable tolling.
equitable tolling to overcome the statute of limitations, the
petitioner must show that either the respondent's
wrongful conduct or circumstances beyond petitioner's
control prevented him from filing within the statute of
limitations. See Holland v. Florida, 560 U.S. 631,
645 (2010); Harris v. Hutchinson, 209 F.3d 325,
329-30 (4th Cir. 2000). Holmes has alleged no facts that
would suggest that respondent somehow prevented him from
filing his federal petition within the one-year statute of
limitations, nor has he alleged any extraordinary
circumstances caused his untimeliness. Holmes is a pro se
plaintiff and perhaps unfamiliar with the law, but his pro se
status alone is not a basis for equitable tolling. See
Johnson v. United States, 544 U.S. 295, 311 (2005).
Equitable tolling does not enable federal review and
Holmes' petition is time-barred.
credible showing of actual innocence may permit a petitioner
to overcome a time-bar restriction, but only if the
petitioner produces new reliable evidence sufficient to
persuade the court that no reasonable juror would have found
him guilty beyond a reasonable doubt. McQuiggin v.
Perkins, 133 S.Ct. 1924, 1928 (2013) . In this case,
Holmes has not challenged his underlying conviction, only the
calculation of his sentence and thus, the actual innocence
exception cannot excuse his late filing.
claims of sentence calculation errors are time-barred and he
has not presented evidence sufficient to overcome this bar to
federal review. Therefore, the undersigned recommends that
Respondent's Motion to Dismiss (EFC No. 15) be GRANTED
and Holmes' Petition Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody (EFC No. 1) be
DENIED and DISMISSED with prejudice.