United States District Court, W.D. Virginia, Roanoke Division
ERIC L. DIAMOND, Petitioner,
HAROLD W. CLARKE, Respondent.
Elizabeth K. Dillon United States District Judge
Diamond, 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 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.
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.
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.) 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
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, Diamond alleges nothing to
support application of § 2244(d)(1)(B)–(D).
§ 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. Accordingly, if
calculated under § 2244(d)(1)(A), his petition is not
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
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 ...