United States District Court, W.D. Virginia, Roanoke Division
ELIZABETH K. DILLON, UNITED STATES DISTRICT JUDGE
Lorenzo Carter, a Virginia inmate proceeding pro se,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his criminal judgments
entered by the Circuit Court of Henry County. This matter is
before the court on respondent's motion to dismiss.
Having reviewed the record, the court grants the motion and
dismisses the petition as time-barred.
March 7, 2007, after a jury trial, the Circuit Court of Henry
County entered final judgment, convicting Carter of
involuntary manslaughter and armed burglary. After a bench
trial, the court also entered a separate final judgment on
March 7, 2007, convicting Carter of possessing a firearm as a
convicted felon. The court sentenced Carter on the three
convictions to a total active term of twenty-three years and
six months of incarceration. Carter appealed, and the Court
of Appeals of Virginia denied his appeal and petition for
rehearing. Thereafter, the Supreme Court of Virginia refused
Carter's petition for appeal on May 15, 2008. Carter did
not file a petition for writ of certiorari to the Supreme
Court of the United States regarding his direct appeal.
March 17, 2017, Carter filed a petition for a writ of habeas
corpus with the Circuit Court of Henry Court, raising
numerous claims of trial court error and ineffective
assistance of counsel. The court dismissed Carter's
petition as time-barred. Carter appealed, and the Supreme
Court of Virginia refused his appeal on March 27, 2018.
Carter filed the instant federal habeas petition on April 19,
2018. See R. Gov. § 2254 Cases 3(d) (describing
the prison-mailbox rule).
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 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, Carter alleges nothing to
support application of § 2244(d)(1)(B)-(C). Under §
2244(d)(1)(A), Carter's conviction became final on August
13, 2008, when his time to file a petition for writ of
certiorari to the Supreme Court of the United States expired.
Accordingly, he had until August 13, 2009, to file a timely
federal habeas petition. However, Carter alleges that he did
not discover the factual predicate of his claims, pursuant to
§ 2244(d)(1)(D), until January 15, 2017. "[T]the
petitioner bears the burden of proving that he exercised due
diligence, in order for the statute of limitations to begin
running from the date he discovered the factual predicate of
his claim, pursuant to 28 U.S.C. § 2244(d)(1)(D)."
DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006)
(citing Lott v. Coyle, 261 F.3d 594, 605-06 (6th
Cir. 2001)). Further, a habeas petitioner who "merely
alleges that [he] did not actually know the facts underlying
his or her claim does not" thereby demonstrate due
diligence. In re Boshears, 110 F.3d 1538, 1540 (11th
Cir. 1997). Carter has not demonstrated that he exercised due
diligence in discovering the factual predicate of his claim.
However, even assuming that he did and that the statute of
limitations did not begin to run until January 15, 2017, his
petition is still untimely filed.
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). Carter's state habeas petition was
dismissed as time-barred. A petition that is denied by a
state court as untimely is not "properly filed"
within the meaning of the AEDPA. Pace, 544 U.S. at
414 (citation omitted) ("When a postconviction petition
is untimely under state law, 'that [is] the end of the
matter' for purposes of § 2244(d)(2).").
Accordingly, Carter's state habeas petition afforded him
no statutory tolling. Therefore, even if the statute of
limitations began to run on January 15, 2017, more than one
year passed before Carter filed his federal habeas petition
on April 19, 2018. Accordingly, the petition is time-barred
unless Carter demonstrates that the court should equitably
toll the statute of limitations, 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).
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 Millerv. 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 ...