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Diamond v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

September 19, 2019

ERIC L. DIAMOND, Petitioner,
HAROLD W. CLARKE, Respondent.


          Elizabeth K. Dillon United States District Judge

         Eric L. Diamond, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, [1] challenging his criminal judgment entered by the Circuit Court of the City of Radford on July 21, 2016. This matter is before the court on respondent’s motion to dismiss (Dkt. No. 10), to which Diamond has responded (Dkt. No. 15). After reviewing the record, the court will grant the motion and dismiss the petition as time barred.

         On July 21, 2016, Diamond pleaded guilty pursuant to a plea agreement in which the Commonwealth agreed to nolle pros nine additional felony charges (Plea Agreement, Resp’t Ex. 2, Dkt. No. 12-2). The City of Radford Circuit Court accepted his guilty pleas and entered a final order convicting him of rape, aggravated sexual battery, distribution of a Schedule IV drug to a minor, possession of child pornography, production of child pornography, and causing cruelty or injury to a child. (Conviction & Sentencing Order, Resp’t Ex. 1, Dkt. No. 12-1.) He was sentenced to a total of seventy years in prison, with fifty-eight suspended, which was the sentence the parties had jointly recommended in the plea agreement. Id. Diamond did not appeal.

         On December 14, 2017, Diamond filed a timely petition for writ of habeas corpus in the Supreme Court of Virginia. (State Pet., SCV Rec. 1–37.)[2] That court granted the respondent’s motion to dismiss and dismissed Diamond’s petition on April 19, 2018. (SCV Op., Dkt. No. 12-3.) Diamond filed this petition on October 30, 2018. See R. Gov. § 2254 Cases 3(d) (describing the prison-mailbox rule).

         Under 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).

         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, Diamond alleges nothing to support application of § 2244(d)(1)(B)–(D).

         Under § 2244(d)(1)(A), Diamond’s conviction became final, and the statute of limitations began to run, when his thirty-day period to file an appeal to the Court of Appeals of Virginia expired on August 22, 2016. See Va. S.Ct. R. 5A:6 (providing that a defendant has thirty day after entry of judgment to note an appeal). Therefore, Diamond had until August 22, 2017, to file a timely federal habeas petition. See Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000) (explaining calculation, as affected by Fed.R.Civ.P. 6(a)). He did not file any state petition or federal petition on or before that time.[3] Accordingly, if calculated under § 2244(d)(1)(A), his petition is not timely.

         In his response to the motion to dismiss, Diamond concedes that his petition was not timely filed. (Resp. 2, Dkt. No. 15.) Accordingly, Diamond’s petition is time barred unless he demonstrates that he is entitled to equitable tolling, 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). In his response opposing dismissal, he argues both of these grounds.

         Equitable tolling is proper 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. An inmate asserting equitable tolling “bears a strong burden to show specific facts” demonstrating that he fulfills both ...

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