United States District Court, W.D. Virginia, Roanoke Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
Waddell, 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 Roanoke City Circuit Court for drug offenses.
Respondent filed a motion to dismiss, and Waddell responded,
making the matter ripe for disposition. Waddell has also
filed a motion to stay the case and a motion for discovery.
After review of the record, I grant the motion to dismiss and
deny the other motions.
January 10, 2017, the Roanoke City Circuit Court entered
final judgment, convicting, Waddell, pursuant to a plea of
nolo contendere, of several theft-related offenses. The court
sentenced him to four years' imprisonment. Waddell did
not appeal or file a petition for a writ of habeas corpus in
the state court. Waddell filed the current petition on July
26, 2018. The respondent submits that Waddell's petition
is procedurally defaulted and untimely. I agree, but I focus
my analysis on the time-bar.
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).
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 sentenced Waddell on January 10, 2017, and
Waddell did not appeal. Therefore, his judgment became final
on February 9, 2017. See Va. Sup. Ct. R. 5:9(a) (requiring a
petitioner to file a notice for appeal within thirty days of
the entry of 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"). Waddell had one year (365 days) from February
9, 2017 to file his § 2254 petition. The statute of
limitations expired on February 9, 2018. Waddell did not file
the present petition until late July 2018, more than five
alleges that he is entitled to equitable tolling based on his
limited education and means; however, he has not shown
reasonable diligence in pursuing his rights and he has not
alleged that any extraordinary circumstance prevented his
timely filing. See United States v. Sosa, 364 F.3d
507, 512 (4th Cir. 2004) (collecting cases) (holding that
"ignorance of the law is not a basis for equitable
tolling"); United States v. Berry, No.
3:09cr00019-l, 2013 WL 150319, at *2 (W.D. Va. Jan. 14, 2013)
(collecting cases) ("Reliance on the difficulties
inherent in prison life is insufficient to demonstrate
equitable tolling."). Further, Waddell has not alleged a
colorable claim of actual innocence. ...