United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge
order entered November 9, 2018, the court conditionally filed
Thacker's petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. In the conditional filing order, the
court noted that Thacker needed to comply with certain
financial requirements. The court also stated that the
petition appeared to be untimely. It therefore directed
Thacker to submit, within fourteen days from the date of the
order, additional argument or evidence he sought to present
concerning the timeliness of the petition. (Order 2, Dkt. No.
5.) In the same paragraph, he was warned that his
“FAILURE TO COMPLY WITH THE CONDITIONS SET FORTH IN
THIS PARAGRAPH MAY RESULT IN DISMISSAL OF THE
PETITION.” (Id. at 2-3.)
submitted some of the financial information requested, but he
did not present any more information as to how his petition
might be deemed timely.
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).
was convicted in 1988, more than 30 years ago, and according
to his petition, all of his appeals or state habeas
proceedings ended in the 1980s. As calculated under §
2244(d)(1)(A), then, his petition clearly is not timely.
Thacker alleges nothing to support application of §
Thacker'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 conviction, McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013). He does not advance a
claim of actual innocence. Instead, Thacker argues in his
petition that he is entitled to equitable tolling because he
had unspecified “mental disabil[ities]” when he
was “younger” and then his direct appeal was
time-barred “because of [his attorney's]
mistakes.” (Pet. 13, Dkt. No. 1.) Neither of these
grounds provide a basis for equitable tolling.
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 elements of the test. Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008).
attorney's alleged errors with regard to his direct
appeal do not explain why Thacker did not timely file his
federal habeas petition. Moreover, neither his lack of
knowledge about the law nor his pro se status is a
basis for equitable tolling. United States v. Sosa,
364 F.3d 507, 512 (4th Cir. 2004) (denying equitable tolling
and explaining that a pro se petitioner's
“misconception about the operation of the statute of
limitations is neither extraordinary nor a circumstance
external to his control”). Most significantly, he has
not alleged, let alone shown, that any action by the