United States District Court, E.D. Virginia, Alexandria Division
Ellis, United States District Judge.
Lamont Neal, a Virginia inmate proceeding pro se, has filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging the constitutionality of his
convictions of abduction, robbery, carjacking, and use of a
firearm in the Circuit Court for the City of Richmond. Dkt.
Nos. 1, 5. Respondent filed a Motion to Dismiss and Rule 5
Answer, along with a supporting brief and exhibits. Dkt. Nos.
13-15. Petitioner was provided the notice required by
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975)
and Local Rule 7K. Dkt. No. 16. Petitioner filed a
traverse. Dkt. No. 19. The Motion to Dismiss is now
ripe for adjudication. For the reasons that follow,
respondent's Motion to Dismiss will be granted, and the
petition will be dismissed, with prejudice.
direct appeal, the Court of Appeals of Virginia stated the
facts of the case as follows. On the day in question, the
was walking away from his vehicle [when] two gunmen, one of
whom was the [petitioner], approached him while pointing
their guns at him. The gunmen told the victim to "get on
the truck." The men asked the victim if he had any guns
or drugs and then checked his pockets, removing money from
him. The gunmen also handcuffed the victim's hands behind
his back. The victim stated his cell phone was attached to
his waist by clip and the phone rang. He testified
"[T]hey snatched my cell phone and my keys feel out [of]
my hoodie jacket... pocket."
No. 1958-13-2 (some alterations in original).
The victim testified that the two gunmen wore "little
ski masks" that covered the bottom of their faces. He
also stated that his car keys fell to the ground and one of
the gunmen retrieved the keys. The victim testified that as
the man was rising back up, his mask "came down"
and the victim had a "clear look" at the man's
face for a "couple" of seconds. The victim
estimated that he was several inches away from the man's
face, and he stated it was sunny when the incident took
place. The victim positively identified [petitioner] in court
as the gunman whose mask had briefly lowered. Upon further
questioning, he agreed that he had no question about his
Additionally, about six weeks after the incident, the victim
identified [petitioner] from a photo array prepared by
Detective Brian Taylor. Detective Taylor testified on
cross-examination that during one of his meetings with the
victim, the victim told him that the mask of the gunman fell
during the robbery and he thought he could identify that
Further, the victim provided the police with the license
plate information of the green Mercedes in which one of the
gunmen left the crime scene. The car was registered to the
[petitioner] and, when officers searched the address located
on the vehicle registration shortly after the crimes,
they found in a bedroom of the house items containing
[petitioner's] name, a mask, clothing matching the
victim's description of the suspect's clothing, and
the victim's cell phone. They also found guns in the
house, and the green Mercedes was parked outside of the
Id. (footnote added). The day of petitioner's
trial, his daughter provided trial counsel with documents
which, according to trial counsel's notes, included only
financial documents. Case Nos. CR13-F-1483-1485, 1487, 1489,
Trial Counsel's Notes.
petition for a writ of habeas corpus must be dismissed if
filed later than one year after (1) the judgment becomes
final; (2) any state-created impediment to filing a petition
is removed; (3) the United States Supreme Court recognizes
the constitutional right asserted; or (4) the factual
predicate of the claim could have been discovered with due
diligence. 28 U.S.C. § 2244(d)(1)(A)-(D).
instant case, petitioner was convicted of abduction, robbery,
carjacking, and use of a firearm in the Circuit Court for the
City of Richmond on October 18, 2013. Nos. CR13-F-1483-1485,
1487, 1489. Petitioner filed a direct appeal in the Virginia
Court of Appeals, which denied the petition for appeal on
June 19, 2014, and again by a three judge panel on January
15, 2015. Record No. 1958-13-2. Petitioner then appealed to
the Supreme Court of Virginia, which refused his appeal on
August 20, 2015. Record No. 150281. Therefore,
petitioner's convictions became final on November 18,
2015, the last date he could have petitioned the Supreme
Court of the United States for a writ of
certiorari. On November 17, 2016, petitioner filed a
state habeas corpus petition in the Supreme Court of Virginia
which was dismissed as untimely on August 15, 2017. Record
No. 161648. On February 6, 2017, at the earliest, petitioner
filed the instant federal petition.
calculating the limitations period, the Court generally must
exclude the time during which state collateral proceedings
pursued by a petitioner were pending, 28 U.S.C. §
2244(d)(2); however, where the state collateral proceeding is
not timely filed, the statute of limitations is not tolled
while such proceedings are pending. Pace v.
DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a
postconviction petition is untimely under state law,
'that [is] the end of the matter' for purposes of
§ 2244(d)(2)"). Here, because petitioner's
state habeas petition was deemed untimely, the limitations
period ran unchecked from November 18, 2015, the date
petitioner's convictions became final, until February 6,
2017, when the instant petition was filed, at which point,
over fourteen months passed. Therefore, the instant petition
was filed over two months beyond the one-year limit.
Accordingly, the petition is untimely under § 2244(d),
unless petitioner can establish that the statute of
limitations does not apply or should otherwise be tolled.
See Hill v. Braxton, 277 F.3d 701, 707 (4th Cir.
2002) (requiring notice and the opportunity to respond before
a sua sponte dismissal under § 2244(d)).
does not argue that he is entitled to equitable tolling.
Rather, in his petition and traverse, petitioner asserts that
he is actually innocent of the crimes of which he was
convicted.In McOuiggin v. Perkins, 569 U.S.
383 (2013), the Supreme Court held that a convincing claim of
actual innocence can overcome the § 2244(d) statute of
limitations; however "tenable actual-innocence gateway
pleas are rare" and limited to cases where,
"'in light of the new evidence, no juror, acting
reasonably, would have voted to find [petitioner] guilty
beyond a reasonable doubt."' McOuiggin, 569
U.S. at 386 (quoting Schlup v. Delo, 513 U.S. 298,
in order to overcome the statute of limitations, the evidence
provided by petitioner must be new and credible.
"Without any new evidence of innocence, even the
existence of a concededly meritorious constitutional
violation is not in itself sufficient to establish a
miscarriage of justice that would allow a habeas court to
reach the merits of a barred claim." Schlup,
513 U.S. at 316. "To be credible, such a claim requires
petitioner to support his allegations of constitutional error
with new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence-that was not presented at
trial." Id. at 324. '"Late-offered*
testimony is not 'new evidence' if the substance of
such testimony ...