United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon, United States District Judge.
Lopez Morales, 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 for Floyd County on May 31, 2016. This
matter is before the court on respondent’s motion to
dismiss (Dkt. No. 15; see also Dkt. No. 27
(supporting brief).) Morales was notified of his opportunity
to respond, but he has not filed anything in response to the
motion to dismiss. After reviewing the record, the court will
grant the motion and dismiss the petition as time barred.
31, 2016, Morales pleaded guilty, pursuant to a plea
agreement, to conspiracy to distribute a schedule I or II
substance. (No. CR15-213; see Plea Agreement, Dkt.
No. 7 at 160–63.) The Floyd County Circuit Court accepted
his guilty plea, (Dkt. No. 7 at 164), and it sentenced him to
a total of 25 years’ incarceration with 13 years
suspended, which was significantly higher than his advisory
guideline range. (May 31, 2016 Sentencing Order, Dkt. No. 7
at 68–69.) Morales did not appeal.
filed a timely petition for writ of habeas corpus in the
Supreme Court of Virginia. (Dkt. No. 7 at
32–56.) Although the record is not clear as to
the exact filing date, the court uses the earliest possible
filing date-May 11, 2017-which is the most beneficial to
him.Virginia’s Supreme Court granted the
respondent’s motion to dismiss and dismissed
Morales’s petition on November 17, 2017. (Dkt. No. 7 at
first petition in this court was signed on June 14, 2018, and
the court treats it as filed on that date. That petition used
an improper form, however, and incorrectly named the United
States as a respondent. (Dkt. No. 1.) On October 4, 2018,
Morales filed an amended petition (Dkt. No. 7). See
R. Gov. § 2254 Cases 3(d) (describing the prison-mailbox
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). Morales alleges nothing to
support application of § 2244(d)(1)(B)–(D).
§ 2244(d)(1)(A), Morales’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 June 30, 2016. See Va. S.Ct.
R. 5A:6 (providing that a defendant has thirty day after
entry of judgment to note an appeal). Therefore, Morales had
until June 30, 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
filed his state petition on May 11, 2017; at that time, 315
days of the federal statute of limitations had run. The
running of the federal statutory period is tolled while a
properly filed state habeas corpus proceedings is pending.
See 28 U.S.C. § 2244(d)(2). Thus, his
limitations period was tolled until the Supreme Court of
Virginia refused his petition for appeal on November 17,
2017. At that point, he had fifty days left to file his
federal petition. He did not file his first petition in this
case until June 14, 2018,  ...