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Proctor v. Dir.

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

December 13, 2018

ERIN DEAN PROCTOR, Petitioner,
v.
DIR., DEP'T OF CORR., Respondent.

          OPINION & ORDER

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

         Erin 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.

         I.

         Rule 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. 1984).[1]

         Under § 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).

         A 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)).

         II.

         In 2011, I concluded that Proctor's § 2254 petition was time-barred. Specifically, the statute of limitations ran for 370 days:

(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.

         On 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.[2] 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. ยง 2254; (2) extraordinary circumstances tolled the statute of limitations and/or precluded a finding of procedural ...


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