United States District Court, W.D. Virginia, Roanoke Division
MICHAEL L. JONES, Petitioner,
HAROLD W. CLARKE, Respondent.
Jackson L. Kiser, Senior United States District Judge.
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.
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
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).
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,
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
§ 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 ...