United States District Court, W.D. Virginia, Roanoke Division
MATTHEW L. RATCLIFFE, Petitioner,
HAROLD W. CLARKE, Respondent.
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
L. Ratcliffe, 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 Roanoke County Circuit Court on July 14,
2015. This matter is before me on
respondent's motion to dismiss (Dkt. No. 13), to which
Ratcliffe has responded (Dkt. No. 22.) After reviewing the
record, I grant the motion and dismiss the petition as time
14, 2015, after Ratcliffe pleaded guilty, the Roanoke County
Circuit Court entered a final order convicting him of three
charges and sentencing him as follows: (1) six years of
incarceration with three years suspended for statutory
burglary; (2) two years with one year suspended for larceny
of a firearm; and (3) two years with one year suspended for
grand larceny. (Nos. CR15-154, CR15-155, and CR15-156.)
(See Conviction & Sentencing Order, Resp. Ex. 1,
Dkt. No. 14-1.) Ratcliffe did not appeal.
December 12, 2016, Ratcliffe filed a timely petition for writ
of habeas corpus with the Supreme Court of Virginia. (State
Pet., Dkt. No. 14-2.) That court granted the respondent's
motion to dismiss and dismissed Ratcliffe's petition on
April 19, 2018. (SCV Op., Dkt. No. 14- 3.) Ratcliffe filed
this petition on August 1, 2018. See R. Gov. §
2254 Cases 3(d) (describing the prison-mailbox rule).
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a one-year statute of limitations
applies when a person in custody pursuant to the judgment of
a state court files a federal petition for a writ of habeas
corpus. 28 U.S.C. § 2244(d)(1)(A)-(D); R. Gov. §
2254 Cases 3(c).
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, Ratcliffe alleges nothing
to support application of § 2244(d)(1)(B)-(C).
§ 2244(d)(1)(A), Ratcliffe's conviction became
final, and the statute of limitations began to run, on August
13, 2015, when his thirty-day period to file an appeal to the
Court of Appeals of Virginia expired. See Va. S.Ct.
R. 5A:6 (providing that a defendant has thirty day after
entry of judgment to note an appeal). Therefore, Ratcliffe
had until August 13, 2016, to file a timely federal habeas
petition. He did not file any state petition or federal
petition on or before that time. Accordingly, if calculated
under § 2244(d)(1)(A), his petition is not timely.
response to the motion to dismiss, he seems to be asking for
the application of § 2244(d)(1)(D), although he does so
only in general terms. For example, he states that he has
been diligent in pursuing facts and making his claims. (Resp.
to Mot. Dismiss 2, Dkt. No. 22.) He does not, however,
identify what factual predicates he needed to discover or
even when he discovered them. “[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).
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). Because Ratcliffe fails to allege any details about
what evidence he discovered or when, he has not demonstrated
that he exercised due diligence in discovering the factual
predicate of his claim so as to fall within §
Ratcliffe's petition is time-barred unless he
demonstrates that he is actually innocent of his convictions,
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), or
that he is entitled to equitable tolling of the one-year