United States District Court, W.D. Virginia, Roanoke Division
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE.
Scott Marshman, 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 Charlottesville 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.
September 9, 2009, after a jury trial, the Charlottesville
Circuit Court convicted Marshman of first degree murder, use
of a firearm in the commission of a felony, and nine counts
of discharging a firearm in a dwelling. The court sentenced
him to 122 years of incarceration, with 27 years suspended.
Marshman appealed, arguing that the evidence was insufficient
to convict him, and the Court of Appeals of Virginia denied
his appeal. Marshman further appealed to the Supreme Court of
Virginia on the same basis, and the court denied his appeal
on December 9, 2010. Marshman did not file a petition for
writ of certiorari to the Supreme Court of the United States.
December 8, 2011, Marshman filed a petition for a writ of
habeas corpus with the Charlottesville Circuit Court, arguing
that trial counsel had provided ineffective assistance. The
court dismissed his petition, and Marshman appealed to the
Supreme Court of Virginia which refused his appeal on October
2, 2013. Marshman filed the instant federal habeas petition
on July 20, 2018.
court conditionally filed the petition, advised Marshman that
the petition appeared to be untimely filed, and provided him
the opportunity to explain why the court should consider it
timely filed. Marshman filed no response 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.
Supreme Court of Virginia denied Marshman's appeal on
December 9, 2010. The statute of limitations began to run in
Marshman's case on March 9, 2011, when his conviction
became final. However, the time during which a
“properly filed” state habeas petition is pending
is not counted toward the period of limitation. 28 U.S.C.
§ 2244(d)(2). Accordingly, the statute of limitations
clock stopped running on December 8, 2011, after
approximately nine months, when Marshman filed a habeas
petition in the Charlottesville Circuit Court. The clock then
began to run again on October 3, 2013, after the Supreme
Court of Virginia refused his habeas appeal. Marshman filed
his federal habeas more than four years later, on July 20,
2018. The time clock on Marshman's statute of limitations
ran for a total of approximately 2, 025 days before he filed
his federal habeas petition. Accordingly, Marshman's
petition is time 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)).
being given the opportunity to argue the timeliness of his
petition, Marshman does not allege any ground that warrants
equitable tolling. Marshman filed his federal habeas petition
more than one year after the judgment became final; 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 evidence).
 The one-year period begins to run on
the latest of four ...