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Jones v. Clarke

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

November 13, 2018

MICHAEL L. JONES, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Hon. Jackson L. Kiser, Senior United States District Judge.

         Michael L. Jones, 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 Halifax County Circuit Court for possession of cocaine with the intent to distribute as a third or subsequent offense. Respondent filed a motion to dismiss, and Jones responded, making the matter ripe for disposition. After review of the record, I grant the motion to dismiss and dismiss the petition.

         I. Procedural History

         Jones is detained pursuant to a final order entered by the circuit court on July 20, 2015. Jones did not appeal. On March 9, 2017, Jones filed a state habeas petition in the Supreme Court of Virginia. The Supreme Court of Virginia denied his petition. On or about February 12, 2018, Jones filed the current petition.

         II. Time-Bar

         Jones's claims are 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).

         Additionally, 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." 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's final judgment was entered on July 20, 2015, and Jones did not appeal. Therefore, his judgment became final on August 19, 2015, thirty days after the entry of judgment. Va. Sup. Ct. R. 5A;6 (Notice of appeal must be filed within thirty days of final judgment.); Gonzalez v. Thaler. 565 U.S. 134, 149 (2012) (holding that, under ยง 2244(d)(1)(A), the judgment becomes final "when the time for pursuing direct review in [the Supreme Court], or in state court, expires"). Jones thus ...


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