United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
Otha Hoge, 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 2015 criminal judgment entered
by the Circuit Court of Rockingham County. This matter is
before me on respondent's motion to dismiss. After
reviewing the record, I conclude that respondent's motion
must be granted and Hoge's § 2254 petition must be
dismissed as time-barred.
March 9, 2015, after a jury trial, the Circuit Court of
Rockingham County entered a final order convicting Hoge of
carnal knowledge of a 13-year-old, in violation of Virginia
Code § 18.2-63, and sentenced him to ten years of
incarceration. Hoge appealed, challenging the sufficiency of
the evidence, and the Court of Appeals of Virginia denied his
appeal. Hoge further appealed to the Supreme Court of
Virginia, which refused his appeal on August 31, 2016. The
online docket of the Supreme Court of the United States shows
that Hoge did not file a petition for writ of certiorari. On
July 2, 2018, Hoge filed a petition for a writ of habeas
corpus in the Supreme Court of Virginia, and the court denied
the petition as untimely filed on August 30, 2018. Hoge filed
the instant federal habeas petition no earlier than September
5, 2018, alleging that the evidence was insufficient to
support his conviction and that counsel was ineffective at
trial and in failing to notify him that his appeal had been
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). Hoge alleges nothing to support
application of § 2244(d)(1)(B)-(D).Under §
2244(d)(1)(A), Hoge's conviction became final on November
29, 2016, when his time to file a petition for writ of
certiorari to the Supreme Court of the United States expired.
Therefore, Hoge had until November 29, 2017, to file a timely
federal habeas petition. Hoge filed his federal habeas
petition on September 5, 2018.
state habeas petition afforded him no statutory tolling under
§ 2244(d)(2), because he did not file it until July 2,
2018, approximately 215 days after the one-year limitations
period expired. Thus, Hoge's 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 conviction, 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 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.
appeal to the Supreme Court of Virginia was filed in December
2015 and was refused by that court on August 31, 2016. In
support of his equitable-tolling argument, Hoge alleges that
he did not know that his appeal had been refused until
September 5, 2017, because counsel failed to notify him. On
October 13, 2017, the Supreme Court of Virginia responded to
a letter from Hoge dated September 5, 2017, and advised him
that his appeal had been refused more than a year earlier.
Hoge does not allege that he could not have discovered this
publicly available information sooner than he claims he did.
He also does not allege that he ...