Elkins v. Virginia
7:12-cv-00431
W.D. Va.Dec 22, 2012Background
- Elkins, a Virginia probationer, challenged a Wise County General District Court judgment (April 12, 2011) via a 28 U.S.C. §2254 petition.
- Judgment sentenced him to a twelve-month suspended term and an active probation term of twelve months after release from custody.
- Elkins did not appeal the conviction.
- He previously filed a federal §2254 petition (Mar. 16, 2012) that was dismissed as unexhausted in 7:12-cv-00133.
- He later filed with the Supreme Court of Virginia (May 11, 2012) which was dismissed as successive on Aug. 9, 2012.
- He filed the instant federal petition on Aug. 27, 2012, asserting a missing, unadjudicated state habeas petition in Wise County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition is timely under §2244(d)(1). | Elkins argues the federal petition should toll or be timely. | Respondent argues the petition is time-barred. | Petition untimely under §2244(d)(1). |
| Whether state-court petitions toll §2244(d)(2). | Petitioner contends state petitions were properly filed and tolled. | Respondent cannot locate a docketed Wise County petition; no tolling shown. | No tolling because no properly filed, pending state petition identified. |
| Whether equitable tolling is warranted. | Petitioner claims external circumstances justify tolling. | No extraordinary circumstances shown; pro se status not enough. | Equitable tolling denied; petition time-barred. |
| Whether prior unexhausted federal petition affects tolling. | Unexhausted petition should toll or be considered differently. | Unexhausted petition cannot toll the federal limitations period. | Prior unexhausted federal petition does not toll the limitations period. |
Key Cases Cited
- United States v. Clay, 537 U.S. 522 (2003) (limits on start of §2254 deadline; direct-review exhaustion rules)
- Wall v. Kholi, 131 S. Ct. 1278 (2011) (collateral review tolling when properly filed; timing relevance)
- Minter v. Beck, 230 F.3d 663 (4th Cir. 2000) (state petition cannot revive expired federal period)
- Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000) (equitable tolling requires extraordinary circumstances)
- Holland v. Florida, 130 S. Ct. 2549 (2010) (outside diligence required for equitable tolling; rare circumstances)
- Sosa v. United States, 364 F.3d 507 (4th Cir. 2004) (pro se status and ignorance of law do not toll limitations)
- Turner v. Johnson, 177 F.3d 390 (5th Cir. 1999) (illiteracy/ignorance not tolling the period)
- Duncan v. Walker, 533 U.S. 167 (2001) (federal petitions cannot toll state-court review period)