Jones v. Warden of Green Rock Correctional Center

Filing 18

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 8/4/2016. (tvt)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
WALTER L. JONES,
Petitioner,
v.
WARDEN,
Respondent.

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Civil Action No. 7:15cv00389
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Walter L. Jones, 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 criminal judgment entered by the Giles County
Circuit Court. This matter is before the court on respondent’s motion to dismiss. After reviewing
the record, the court grants the motion and dismisses the petition as time barred.
On September 5, 2013, after Jones pleaded nolo contedere, the Giles County Circuit Court
entered a final order convicting him of aggravated malicious wounding, in violation of Virginia
Code § 18.2-51.2, and sentencing him to a total of fifty years incarceration, with thirty years
suspended. Jones did not appeal. On June 2, 2014, Jones filed a petition for a writ of habeas
corpus with the Supreme Court of Virginia, which the court dismissed on December 18, 2014.
Jones filed the instant petition on July 10, 2015. 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), Rule 3(c) of the Rules
Governing § 2254 Proceedings. Under § 2244(d)(1)(A), Jones’ conviction became final, and the
statute of limitations began to run, on October 7, 2013, when his time to file an appeal to the Court

of Appeals of Virginia expired.1 Therefore, Jones had until October 7, 2014, to file a timely federal
habeas petition.
However, the time during which a “properly filed” state habeas petition is pending is not
counted toward the limitations period. 28 U.S.C. § 2244(d)(2). Accordingly, the statute of
limitations clock stopped running on June 2, 2014, after approximately 238 days, when Jones filed a
habeas petition in the Supreme Court of Virginia. The clock began running again when the
Supreme Court of Virginia dismissed his petition on December 18, 2014, and stopped
approximately 204 days later when Jones filed his federal habeas petition on July 10, 2015.
Therefore, the time clock on Jones’ statute of limitations ran for a total of approximately 442 days
before he filed his federal habeas petition. Accordingly, Jones’ petition is time-barred unless he
demonstrates that he is actually innocent of his convictions, McQuiggin v. Perkins, 133 S. Ct. 1924,
1928 (2013), or that the court should equitably toll the one-year statute of limitations, Rouse v. Lee,
339 F.3d. 238, 246 (4th Cir. 2003).2
Jones makes no argument to support actual innocence or equitable tolling. Accordingly, I
will grant respondent’s motion to dismiss Jones’ petition as untimely filed.
An appropriate order will be entered.
Entered: August 4, 2016.

Elizabeth K. Dillon
United States District Judge

1

Jones alleges nothing to support application of § 2244(d)(1)(B-D).

2

A 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, 209 F.3d at 330). 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)). Generally, the petitioner is obliged to specify “‘the steps he took to
diligently pursue his federal claims.’” Id. at 930 (quoting Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998)).

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