United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
Jamar Fallen, 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
Circuit Court for the City of Danville. This matter is.before
the court on respondent's motion to dismiss. After
reviewing the record, the court concludes that
respondent's motion must be granted and Fallen's
§ 2254 must be petition dismissed as time-barred.
21, 2015, after Fallen pled nolo contendere, the
Circuit Court for the City of Danville entered a final order
convicting him of second degree murder, use of a firearm in
the commission of a felony, and discharging a firearm in a
public place resulting in death. The court sentenced him to a
total of forty-eight years of incarceration, with
twenty-three years suspended. Fallen did not appeal. On or
about June 16, 2017,  Fallen filed a petition for a writ of
habeas corpus in the Circuit Court for the City of Danville,
alleging that his plea was not knowing and voluntary because
counsel was ineffective when he misadvised Fallen regarding
the sentencing guidelines. Specifically, Fallen states that
counsel advised him that "the guidelines were an
accurate reflection of the punishment range for the offense[s
he] was pleading guilty to." However, Fallen states that
he has "now learned" that the guideline calculation
"included a crime [(robbery)] which [he] was convicted
of after" committing the crimes to which he plead
guilty. Fallen argues that the robbery conviction should not
have been considered in calculating his guideline range. The
Circuit Court denied his habeas petition on October 20, 2017.
The court found that his claim concerning the voluntariness
of his plea was defaulted under Slayton v. Parrigan,
205 S.E.2d 680. 682 (Va. 1974), and that his ineffective
assistance of counsel claim failed on its merits under
Strickland v. Washington, 466 U.S. 668 (1984),
because Fallen failed to demonstrate that counsel's
performance was deficient or that Fallen was prejudiced by
the alleged deficient performance. Fallen appealed and the
Supreme Court of Virginia dismissed his petition on June 22,
2018, as untimely filed. Fallen filed the instant federal
habeas petition no earlier than October 29, 2018, alleging
the same claims that he raised in his state habeas petition.
See Pet., ECF No. 1, 12; R. Gov. § 2254 Cases
3(d) (describing the prison-mailbox rule).
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, Fallen alleges nothing to
support application of §
2244(d)(1)(B)-(D). Under § 2244(d)(1)(A), Fallen's
conviction became final on August 20, 2015, when his time to
file a direct appeal of his conviction expired, see Va. Code
§ 8.01-675.3 and Va. S.Ct. R. 5 A:6, and the statute of
limitations began to run on that date. Therefore, Fallen had
until August 22, 2016, to file a timely federal habeas
did not file his state habeas petition until June 16, 2017,
approximately 300 days after the one-year limitations period
expired. Thus, Fallen's state habeas petition afforded
him no statutory tolling under § 2244(d)(2),
his federal habeas 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
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)). The Fourth Circuit defines diligence as "the
diligence reasonably expected from, and ordinarily
exercised by, a person who seeks to satisfy a legal
requirement or to discharge an obligation." Lawrence
v. Lynch, 826 F.3d 198, 204 (4th Cir. 2016) (quoting
Diligence, Black's Law Dictionary (10th Ed.
support of an equitable tolling argument, Fallen states that
he repeatedly requested his "entire trial record"
from defense counsel, but that his letters were ignored until
he filed a Virginia State Bar complaint against counsel. Once
he "finally received the trial record and corresponded
with counsel about the guidelines," he
"discovered" that counsel's ineffectiveness
"cause[d him] to enter unknowing pleas of
guilty." See Resp. Opp., ECF No. 16, 2. Fallen argues
that "absent evidence to ...