United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION
Michael F. Urbanski, Chief United States District Judge
James
Nathaniel Whitfield, 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 Pittsylvania County Circuit Court.
This matter is before the court on respondent's motion to
dismiss. After reviewing the record, the court grants the
motion and dismisses the petition as
time-barred.[1]
I.
On May
27, 2014, after a jury found Whitfield guilty, the
Pittsylvania County Circuit Court entered a final order
convicting him of possessing cocaine with intent to
distribute as a third or subsequent offense and possession of
marijuana. The court sentenced him to a total of twenty years
and thirty days of incarceration. With counsel, Whitfield
appealed and the Court of Appeals of Virginia denied his
appeal. On December 30, 2015, the Supreme Court of Virginia
refused his pro se appeal. Whitfield did not file a
petition for a writ of certiorari to the Supreme Court of the
United States. On October 3, 2016, Whitfield filed a
“motion to vacate an unlawful sentence” in the
circuit court, and court denied his motion on October 7,
2016. On December 28, 2016, Whitfield simultaneously filed
petitions for a writ of habeas corpus with the circuit court
and with the Supreme Court of Virginia.[2] The circuit court
denied the habeas petition on May 26, 2017, rejecting his
claims as non-cognizable, without merit, or both. The Supreme
Court of Virginia dismissed Whitfield's habeas petition
on October 11, 2017, finding that it was “barred”
by Virginia Code § 8.01-663, because Whitfield had
raised the same claims in the circuit court and did not
appeal the circuit court's dismissal of his petition.
Whitfield filed the instant petition no earlier than December
19, 2017. See Pet., ECF No. 1, 25; R. Gov. §
2254 Cases 3(d) (describing the prison-mailbox rule).
II.
Under
the Antiterrorism and Effective Death Penalty Act of 1996, a
petitioner has a one-year period of limitation to file a
federal habeas corpus petition. This statute of limitations
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). Here, Whitfield alleges nothing
to support application of § 2244(d)(1)(B)-(D). Under
§ 2244(d)(1)(A), Whitfield's conviction became final
on March 29, 2016, when his time to file a petition for writ
of certiorari to the Supreme Court of the United States
expired, and the statute of limitations began to run on that
date.
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.” 28 U.S.C. § 2244(d)(2). An application
for post-conviction review or other state collateral
proceeding is “properly filed” when its delivery
and acceptance are in compliance with the applicable laws and
rules governing filings.” Artuz v. Bennett,
531 U.S. 4, 8 (2000); see also Pace v. DiGuglielmo,
544 U.S. 408, 414 (2005). Whitfield properly filed a habeas
petition in the Pittsylvania County Circuit Court on December
28, 2016, and the statute of limitations stopped running on
that date after 274 days.[3] The court dismissed his petition on May
26, 2017, and the statute of limitations began running again
on that date. Whitfield's habeas petition filed in the
Supreme Court of Virginia did not toll the statute of
limitations because it was not “properly filed.”
See, e.g., McNabb v. Kiser, No. 7:17cv00449, 2018
U.S. Dist. LEXIS 84815, at *5 n.2, 2018 WL 2298376, at *2 n.2
(W.D. Va. May 21, 2018); Dean v. Johnson, No.
2:07cv320, 2007 U.S. Dist. LEXIS 99160, at *15, 2007 WL
4232732, at *4 (E.D. Va. Nov. 1, 2007). Therefore, the
limitations period ran for another 207 days before Whitfield
filed his federal habeas petition on December 19, 2017.
Inasmuch as the statute of limitations ran for a total of 481
days before Whitfield filed his federal habeas petition, the
petition is time-barred unless he demonstrates that the court
should equitably toll the limitations period, Rouse v.
Lee, 339 F.3d. 238, 246 (4th Cir. 2003), or that he is
actually innocent of his convictions, McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013).
A
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, 339 F.3d. at 246 (citing Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). 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)). Whitfield has presented no
specific evidence to suggest that he was prevented from
complying with the statutory time limit. Accordingly, the
court finds no basis to equitably toll the limitations
period.
Finally,
a gateway claim of actual innocence requires a petitioner to
produce new, reliable evidence sufficient to persuade the
court that no reasonable juror would have found the
petitioner guilty beyond a reasonable doubt to overcome a
time-bar restriction. McQuiggin, 569 U.S. at 386
(citing Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Whitfield has not presented any new evidence in his federal
habeas petition and, thus, has not plausibly alleged a ...