JAMES P. JONES, District Judge.
In this pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, the petitioner Marcus Clemmer, a Virginia inmate, challenges the validity of his confinement on a judgment by the Circuit Court for the City of Danville. After review of the record, I conclude that the respondent's Motion to Dismiss must be granted, because Clemmer's petition is untimely filed.
On June 30, 2014, a jury convicted Clemmer of burglary, grand larceny, possession of a controlled substance, and petty larceny third offense and the state court sentenced him to seven years imprisonment. Clemmer did not pursue a direct appeal, and thus his conviction became final ninety days later, on September 28, 2014.
Clemmer timely filed a petition for a writ of habeas corpus in the Supreme Court of Virginia on September 18, 2015. On April 19, 2016, the court denied his petition as procedurally barred under Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), cert. denied, 419 U.S. 1108 (1975). Clemmer then filed the present petition in this court on July 8, 2016, raising nine claims, as follows:
The Respondent moves to dismiss Clemmer's habeas petition and Clemmer has responded to the motion, making the case ripe for review.
II. STATUTE OF LIMITATIONS.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner must file his federal habeas petition within one year from the latest of when: (1) his conviction became final by the conclusion of direct review or the expiration of the time for seeking such review, (2) any illegal state created impediment to filing was removed, (3) the United States Supreme Court recognized a new, retroactively applied constitutional right, or (4) the factual predicate of the claim could have been discovered through due diligence. 28 U.S.C. § 2244(d)(1). Clemmer has not alleged that any illegal impediment existed, that the Supreme Court recognized a new retroactive right, or that the factual predicates of his claims were undiscoverable.
A petitioner can "toll" the federal habeas statute of limitation in two ways: statutory tolling and equitable tolling. Statutory tolling occurs when a petitioner files a state habeas petition within the federal limitation period; the federal habeas statute of limitation is then tolled for the duration of the state habeas proceeding. 28 U.S.C. § 2244(d)(2). Meanwhile, a petitioner is only entitled to equitable tolling if he shows "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544, U.S. 408, 418 (2005)).
Clemmer's § 2254 petition is time-barred under 28 U.S.C. § 2244(d). Clemmer's direct review process ended on June 30, 2014. His conviction became final on September 28, 2014, when he failed to file a writ of certiorari to the Supreme Court within ninety days.
Clemmer's federal habeas statute of limitations began to run once again on April 20, 2016, and the one-year statute of limitation expired twelve days later, on May 2, 2016. Clemmer did not file the current petition until July 8, 2016. Accounting for tolling under § 2244, 432 days had accrued under the AEDPA statute of limitations.
Accordingly, Clemmer did not file his federal habeas petition within the one-year limitation period.
Further, Clemmer is not entitled to equitable tolling. Clemmer does not demonstrate that he has been pursuing his rights diligently or that extraordinary circumstances stood in his way and prevented timely filing. He also failed to respond to a request for more information as to either (1) evidence contradicting the filing dates, or (2) additional evidence concerning why he could not earlier submit his § 2254 claims.
For the stated reasons, I conclude that Clemmer's habeas petition is untimely filed under 28 U.S.C. § 2244(d) and his pending motions are dismissed as moot.
A separate Final Order will be entered herewith.