United States District Court, W.D. Virginia, Roanoke Division
OPINION & ORDER
Jackson L. Kiser, Senior United States District Judge
Dean Proctor, a Virginia inmate proceeding pro se, has
submitted a motion for reconsideration pursuant to Rule
60(b)(6), seeking reconsideration of the 2011 dismissal of
his 28 U.S.C. § 2254 petition. After review of the
record, I deny the motion.
60(b) allows a party to seek relief from a final civil
judgment in a limited number of circumstances, including: (1)
mistake or neglect; (2) newly discovered evidence; (3) fraud;
(4) the judgment is void; (5) the judgment has been
satisfied; and (6) "any other reason that justifies
relief." Fed.R.Civ.P. 60(b). When a petitioner seeks
Rule 60 relief from the court's judgment denying his
§ 2254 petition, he must demonstrate "some defect
in the integrity of the federal habeas proceedings" to
justify revisiting the judgment denying his original habeas
petition, such as an erroneous finding of procedural default
or a statute of limitations bar. Gonzalez v. Crosby,
545 U.S. 524, 532 (2005). To obtain relief under Rule 60(b),
Proctor must show four factors: (1) timeliness, (2) a
meritorious defense; (3) a lack of unfair prejudice to the
opposing party; and (4) exceptional circumstances. Werner
v. Carbo, 731 F.2d 204, 206-07 (4th Cir.
§ 2244(d)(1), a petitioner must file his federal habeas
petition within one year from the latest of when: (1) his
conviction became final by the conclusion of direct review or
the expiration of the time for seeking such review, (2) any
illegal state created impediment to filing was removed, (3)
the United States Supreme Court recognized a new,
retroactively applied constitutional right, or (4) the
factual predicate of the claim could have been discovered
through due diligence. 28 U.S.C. § 2244(d)(1).
petitioner can "toll" the federal habeas statute of
limitation in two ways: statutory tolling and equitable
tolling. Statutory tolling occurs when a petitioner files a
state habeas petition within the federal statute of
limitation period. The federal habeas statute of limitation
is then tolled for the duration of the state habeas
proceeding. 28 U.S.C. § 2244(d)(2). 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)).
2011, I concluded that Proctor's § 2254 petition was
time-barred. Specifically, the statute of limitations ran for
(1) His conviction became final on December 10, 2009. See
Sup. Ct. R. 13(1).
(2) He did not appeal, but filed a state habeas petition in
the circuit court on March 7, 2010, 86 days after his
conviction became final.
(3) The circuit court denied his petition on July 14, 2010.
He appealed, but the Supreme Court of Virginia dismissed the
appeal for failure to comply with Va. Sup. Ct. R. 5:17(c).
(4) The statute of limitations ran for 285 days, from July
15, 2010, until Proctor placed his § 2254 petition in
the prison mail system on April 25, 2011.
December 3, 2018, Proctor filed a motion under Rule 60(b)(6)
seeking reinstatement of his petition and/or another chance
to file a § 2254 petition. He asserts that (1) the
court's 2011 decision was incorrect regarding Va. Sup.
Ct. R. 5:1, 5:17, and 28 U.S.C. § 2254; (2)
extraordinary circumstances tolled the statute of limitations
and/or precluded a finding of procedural ...