Opinion
Civil Action No. 7:07-cv-00257.
June 18, 2007
MEMORANDUM OPINION
Petitioner Albert Wayne Sample, a Virginia inmate proceedingpro se, has filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2002 conviction and 20 year sentence for possession of oxycodone with intent to distribute. Sample alleges that he was illegally searched and items were illegally seized from him, trial counsel provided ineffective assistance, the prosecutor engaged in misconduct, the trial court abused its discretion, he was denied his right to confront witnesses against him, he was convicted on insufficient evidence, and that the Virginia statute under which he was convicted was unconstitutionally vague. The court finds that Sample's petition is untimely and that there are no grounds for equitable tolling. Therefore, the court dismisses his petition.
I.
On September 5, 2002, in the Grayson County Circuit Court, Sample was convicted of possessing oxycodone with the intent to distribute and sentenced to 20 years incarceration. Sample appealed his conviction to the Court of Appeals of Virginia and the Supreme Court of Virginia and both appeals were ultimately denied on January 13, 2004 and October 1, 2004, respectively. Sample then filed a petition for writ of certiorari the United States Supreme Court, which was denied on March 7, 2005. Having no success on his direct appeal, Sample filed a state habeas petition in the Grayson County Circuit Court on February 22, 2006. On April 6, 2006, the court dismissed his petition as untimely. Sample appealed that denial to the Supreme Court of Virginia, which also denied his petition on January 18, 2007. Sample then filed a petition for writ of certiorari to the United States Supreme Court on February 12 or 13, 2007, which was denied on April 16, 2007. On May 1, 2007, Sample filed the instant federal habeas petition.
Virginia Code § 8.01-654(A)(2) provides that a habeas petitioner must file his petition within two years from the date of final judgment in the state trial court or one year from the date of final disposition of the direct appeal in state court, whichever is later. In this case, final judgment was entered on September 5, 2002 and the Supreme Court of Virginia finally disposed of the appeal when it denied his petition for rehearing on October 1, 2004. Thus, Sample had until Monday, October 3, 2005, to timely file his state habeas petition. In Virginia, the filing of a petition for writ of certiorari to the United States Supreme Court does not toll the statute of limitations. See Va. Code § 8.01-654(A)(2).
The United States District Court for the Eastern District of Virginia received and docketed his petition on May 10, 2007. However, an inmate's action is commenced for purposes of the statute of limitations as soon as he delivers his petition to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988), Lewis v. Richmond City Police Depot, 947 F.2d 733, 735 (4th Cir. 1991). Therefore, for purposes of the statute of limitations, the court will assume that Sample submitted his petition to prison officials the same day he signed it.
II.
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). Sample did not meet this one-year statute of limitations. Sample had 365 days from the date on which his conviction became final, or until March 7, 2006 to file his federal habeas petition. Although Sample filed his state habeas petition on February 22, 2006, it was not "properly filed" under Virginia state law, and therefore, cannot toll the statute of limitations. Accordingly, Sample's petition is barred unless he demonstrates grounds for equitable tolling of the one-year statute of limitations. Sample has made no such demonstration. With regard to timeliness, Sample argues that his institution was on "lock-down" from April 13, 2007 to April 24, 2007, for 12 days, without access to the law library. However, his petition was untimely by 785 days; therefore, the 12-day lock-down ultimately had no effect on the timeliness of his federal habeas petition. Sample also claims, in his amended petition, that he is actually innocent of the crime of which he was convicted. However, to demonstrate actual innocence, Sample must support his claim with "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298 (1995); Royal v. Taylor, 188 F.3d 239, 243-44 (4th Cir. 1999). He also must show that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup, 513 U.S. at 327; Royal, 188 F.3d at 243-44. Sample has presented no new evidence in support of his assertion. Therefore, the court finds that Sample is not entitled to equitable tolling in this case and that his habeas petition is untimely.III.
For the foregoing reasons, the court dismisses Sample's petition as untimely.