govinfo:USCOURTS-ncwd-5_25-cv-00145-0

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION

MARK THOMAS BOGER, )
)
Petitioner, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
LESLIE COOLEY DISMUKES, )
Secretary, North Carolina )
Department of Adult Correction, )
)
Respondent. )
________________________________ )

THIS MATTER is before the Court on the pro se Petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Mark Thomas Boger
(the “Petitioner”) on September 11, 2025. [5:25-cv-00145, Doc. 1] Also
before the Court is the Respondent’s Motion to Dismiss [id., Doc. 9], the
Petitioner's renewed Motion to Proceed In Forma Pauperis, [id., Doc. 15],
and the Petitioner’s Motion to Amend an earlier filing. [Id., Doc. 18].
I. BACKGROUND
The Petitioner is a prisoner of the State of North Carolina. [5:25-cv-
00145, Doc. 1 at 1]. Including this matter, the Petitioner has filed four actions
in this Court that relate directly or indirectly to his North Carolina convictions
sustained in the Iredell County Superior Court on October 4, 2018, for which

he is imprisoned.1 The Court finds it necessary, in order to conduct its review
of this case, to recount in detail the procedural history leading up to the
present petition.
In 2016, the Petitioner was charged in Iredell County Criminal Case
Number 16-CrS-53224 with: (1) Possession with Intent to Sell or Deliver a
Schedule II Controlled Substance; (2) Maintaining a Dwelling for Keeping or
Selling Controlled Substances; and (3) Sale of Schedule II Controlled
Substances. [5:25-cv-00145, Doc. 1 at 1]. He was also charged in a second
matter, Criminal Case Number 16 -CrS-53225, with three like charges. [ Id.].
In 2017, Petitioner was charged in Criminal Case Number 17 -CrS-828 with
being a Habitual Felon. [Id.].
On October 4, 2018, following a jury trial on the 2016 drug charges,
Petitioner was convicted on all counts. Thereafter, he entered a plea of guilty
to being a habitual felon. [5:25-cv-00145, Doc. 1-1 at pp. 2-3]. According to
the NCDAC Database, the state trial court sentenced the Petitioner in one
judgment as a habitual felon to a 10-to-13 year term of imprisonment for the
convictions in Case Number 16 -CrS-53224, and in a second judgment to a

1 This Court’s file numbers associated with Petitioner’s four cases are: 5:21 -cv-00018;
5:21-cv-00123; 5:22-cv-00034; and 5:25-cv-00145. The Court takes judicial notice of all
documents in each of these files. Fed. R. Evid. 201. Citations to documents referenced
in this order will list the case file number followed by the docket number where the
document appears. For example, the petition filed in this present case would be cited as
[5:25-cv-00145, Doc. 1].

consecutive habitual 10-to-13 year term of imprisonment for the convictions
in Case Number 16-CrS-53225.2
The Petitioner filed a direct appeal raising two grounds: (1) the record
did not reflect that the jury was properly impaneled at his trial , and (2) the
trial court’s judgment assessing attorney’s fees violated due process
because he was not present before the trial court when it ascertained the
amount of fees owed . State v. Boger, No. COA19-220, 2019 WL 5214588
(N.C. App. Oct. 15, 2019) (unpublished). The appellate court affirmed
Petitioner’s judgments finding no error in the trial court’s impaneling of the
jury. Id. The appellate court, however, vacated the award of attorney’s fees
and remanded the matter to the trial court for it to provide the Petitioner with
notice and an opportunity to be heard on the determination of the amount of
attorney’s fees owed. Id.
On December 27, 2019, the Petitioner filed a pro se post-conviction
“Motion to Vacate” in Iredell County Superior Court. [5:25-cv-00145, Doc. 1-
2]. In this filing, the Petitioner alleged a single instance of prosecutorial

2 See https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID=
0036105&searchOffenderId=0036105&searchDOBRange=0&listurl=pagelistoffendersea
rchresults&listpage=1 (herein “NCDAC Database”); Fed. R. Evid. 201.

misconduct and requested the trial court to vacate his convictions and
sentences. [Id.]. The state trial court has never acted upon this motion.
On January 6, 2020, following the remand from the North Carolina
Court of Appeals, the trial court conducted a hearing on the attorney’s fees
issue. State v. Boger, No. COA20-393, 2021 WL 1750858 (N.C. App. May
4, 2021) (unpublished). On that day, the trial court ordered “that the $3210.00
attorneys fees remain as a civil judgment.” [5:25-cv-00145, Doc. 10-13 at 2].
Separately from reconsidering the assessment of attorney’s fees, and as a
result of the Petitioner’s derogatory epithets directed at his attorney and at
the court during that hearing, the trial court notified the Petitioner he would
be held in criminal contempt. On January 9, 2020, the trial court convicted
and sentenced him to an additional 60 days to be served at the end of his
sentence. Boger, No. COA20 -393, supra. The Petitioner appealed again,
this time challenging only the contempt judgment, and the Court of Appeals
affirmed the trial court. Id.
On October 2, 2020, the Petitioner filed a pro se post-conviction Motion
for Appropriate Relief (“MAR”) in Iredell County Superior Court challenging
the evidence presented against him at trial. [5:25 -cv-00145, Doc. 1 0-11].
The trial court denied the MAR on November 6, 2020, concluding that

Petitioner failed to set forth any probable grounds for relief. [5:22-cv-00034,
Doc. 11 at 5].
On February 5, 2021, Petitioner filed a complaint in this Court, pursuant
to 42 U.S.C. § 1983, asserting that the Iredell County assistant district
attorney who prosecuted Petitioner violated his due process rights, and the
trial judge who presided over hi s criminal trial in Iredell County violated
Petitioner’s constitutional rights by failing and refusing to rule on his Motion
to Vacate. [5:21-cv-00018, Doc. 1]. By Order entered March 16, 2021, this
Court dismissed Petitioner’s action finding that it fail ed to state a claim and,
additionally, the relief Petitioner sought in requesting an order to compel the
trial judge to act upon Petitioner’s pending Motion to Vacate was unavailable
under 42 U.S.C. § 1983. [ Id., Doc. 12 at 5]. Petitioner filed a motion to
reconsider on April 5, 2021. [Id., Doc. 14]. This Court denied that motion on
April 21, 2021. [Id., Doc. 16]. In its Order denying Petitioner’s reconsideration
motion, the Court explained,
Moreover, the Court is without authority here to order
Judge Crosswhite to rule on Plaintiff’s pending motion to vacate.
Plaintiff, however, is not without an avenue for relief. The most
obvious avenue for Plaintiff is to seek a Writ of Mandamus from
the North Carolina Court of Appeals pursuant to Rule 22 of the
North Carolina Rules of Appellate Procedure. Thereafter,
Plaintiff may seek relief from his State conviction under 28 U.S.C.
§ 2254 after exhausting his State court remedies or on showing
“there is an absence of available State corrective process” or

“circumstances exist that render such process ineffective to
protect [his] rights.” 28 U.S.C. § 2254 (b)(1).

[Id., Doc. 16 at 4].
On August 18, 2021, using a North Carolina appellate form as a
template, Petitioner filed a “Petition for Writ of Certiorari” in this Court. [5:21-
cv-00123, Doc. 1]. On September 20, 2021, this Court denied and dismissed
Petitioner’s action without prejudice explaining,
The Court here has an insufficient record on which to address
Plaintiff’s request for relief. It does not appear that Petitioner has
exhausted his state remedies and Petitioner’s submission of the
subject filing on a form intended for relief from North Ca rolina
appellate courts has further confused matters. If Petitioner
intends to seek relief under 28 U.S.C. § 2254, he is reminded
that he must exhaust his state remedies first and then he must
submit his petition on the appropriate form. The Court will
therefore deny and dismiss Plaintiff’s motion without prejudice to
Plaintiff filing a new action pursuant to 28 U.S.C. § 2254 when
he has fully exhausted his state remedies. To that end, the Court
will instruct the Clerk to send Plaintiff a blank § 2254 fo rm. The
Court, however, does not assess the merits of such action now
or the timeliness of any relevant proceedings relate thereto.

[5:21-cv-00123, Doc. 4 at pp. 4-5].
On September 1, 2021, Petitioner filed a petition for writ of certiorari in
the North Carolina Court of Appeals. State v. Boger, No. P21-344 (N.C. App.
Sept. 1, 2021). Petitioner asserts he made this filing because he was “tired
of waiting for a ruling on his Motion to Vacate[.]” [5:25 -cv-00145, Doc. 1 at
2]. On October 8, 2021, the court of appeals denied Petitioner’s certiorar i

petition. State v. Boger, No. P21-344 (N.C. App. Oct. 8, 2021). Petitioner
filed a Motion to Reconsider October 20, 2021, which the appellate court
denied that day. State v. Boger, No. P21-344 (N.C. App. Oct. 20, 2021).
On March 31, 2022, the Petitioner filed in this Court a petition for writ
of habeas corpus, pursuant to 28 U.S.C. § 2254. [5:22 -cv-00034, Doc. 1].
On December 6, 2023, the Court dismissed the action. [ Id., Doc. 22]. The
Court found, based upon Petitioner’s sworn statements in the petition, that
his Motion to Vacate filed in the state trial court had not been resolved and
remained pending. [Id.]. As such, and since nothing contained in Petitioner’s
post-conviction motion had been presented to the highest state court having
jurisdiction, this Court concluded Petitioner had not exhausted his available
state remedies. [Id.].
On December 20, 2023, Petitioner filed a Motion to Reconsider the
Court’s December 6, 2023, dismissal order. [Id., Doc. 26]. On October 15,
2024, the Court denied Petitioner’s motion. [ Id., Doc. 48]. The Court noted
that Petitioner still had pending his Motion to Vacate in state court that
precluded this Court’s jurisdiction to review the merits of his petition. [Id.,
Doc. 48 at pp. 6-7]. On October 28, 2024, the Petitioner appealed this Court’s
order dismissing his § 2254 action and the Court’s order denying
reconsideration to the Fourth Circuit. [ Id., Doc. 50]. In an unpublished

decision, the Fourth Circuit dismissed Petitioner’s appeal on March 4, 2025.
[Id., Doc. 55].
On March 17, 2025, Petitioner filed a Petition for Writ of Mandamus in
the North Carolina Court of Appeals, seeking an order compelling the state
trial court to act on his Motion to Vacate. [5:25-cv-00145, Doc. 10-14]; Boger
v. Iredell County Superior Court, No. P25-183 (N.C. App. Mar. 17, 2025). On
June 4, 2025, the appellate court denied the petition. [5:25 -cv-00145, Doc.
10-15]. On June 30, 2025, Petitioner sought further review in the North
Carolina Supreme Court. [5:25 -cv-00145, Doc. 1 0-16]; Boger v. Iredell
County Superior Court, No. 161P25-1 (N.C. June 30, 2025). On August 20,
2025, the North Carolina Supreme Court dismissed Petitioner’s motion.
[5:25-cv-00145, Doc. 10-17].
On September 11, 2025, the Petitioner filed in this Court a second in
time petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. [5:25 -
cv-00145, Doc. 1]. This petition is the one presently before the Court for
review. The Petitioner also filed a Motion to Proceed In Forma Pauperis. [Id.,
Doc. 2]. The Petitioner, however, did not submit any prisoner trust fund
account statement with his IFP motion and the Court thus dismissed that
motion without prejudice. [Id., Doc. 4].

On November 25, 2025, the Court conducted its initial review of the §
2254 petition and, among other things, ordered the Respondent to answer
or otherwise plead to the petition within 60 days. [Id., Doc. 4]. On January
26, 2026, the date the Respondent’s responsive pleading was due, the
Respondent filed a Motion for Extension o f Time to Answer [ id., Doc. 7],
seeking an additional 30 days to respond to the petition. Three weeks later,
on February 17, 2026, the Petitioner filed an objection to Respondent’s
request for additional time. [Id., Doc. 8]. On February 25, 2026, the
Respondent filed a Motion to Dismiss [ id., Doc. 9], a Memorandum with
exhibits in support of her dismissal motion [ id., Doc. 10], and a Motion for
Leave to File Excess Pages. [ Id., Doc. 11]. The following day, the
Respondent filed a Motion to Deem Timely Filed her dismissal motion. [ Id.,
Doc. 12].
In her Motion for Extension of Time to Answer, the Respondent
indicated that part of her request for such extension was because she was
“still waiting to receive certain documents from the state trial court which are
necessary to complete Respondent’s res ponse to the petition.” [ Id., Doc. 7
at 2]. The Petitioner’s objection to the Respondent’s request did not address
this ground, or any other, but simply asked the Court to deny Respondent’s
additional time request. [ Id., Doc. 8]. The Court grant ed the Respondent’s

Motion for Extension of Time to Answer and den ied as moot the
Respondent’s Motion to Deem Timely Filed. [Id., Doc. 13].
In her Motion to Dismiss and supporting Memorandum , t he
Respondent lists several bases that she argues legally would support an
order for dismissal of the § 2254 petition. In accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the Court entered an Order March 5,
2026, notifying the Petitioner that he had a right to respond to the
Respondent’s dismissal motion .3 [Id., Doc. 13]. On March 12, 2026, the
Petitioner filed his Response to the Respondent’s dismissal motion. [Id.,
Doc. 14]. The same day, the Petitioner renewed his Motion to Proceed In
Forma Pauperis. [Id., Doc. 15]. On March 16, 2026 , the Petitioner filed a
Motion to Amend his Reply to the Respondent’s Motion to Dismiss, [id., Doc.
18], to which the Respondent did not object. [Id., Doc. 20 at 1]. The parties
have filed their respective responses and replies to the Respondent’s
dismissal motion and that motion in now ripe for review.

3 The Fourth Circuit did not hold in Roseboro that such notice is required for motions to
dismiss. Rather, the Fourth Circuit’s discussion in Roseboro regarding notice was
directed to summary judgment motions. See Roseboro, 528 F.2d at 310 (“We agree with
the plaintiff, however, that there is another side to the coin which requires that the plaintiff
be advised of his right to file counter-affidavits or other responsive material and alerted to
the fact that his failure to so respond might re sult in the entry of summary judgment
against him.”) . Nevertheless, courts routinely issue Roseboro notices for motions to
dismiss out of an abundance of caution, and the Court did so here.

II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
provides a statute of limitations for § 2254 petitions by a person in custody
pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The petition
must be filed within one year of 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.

Id. The limitation period is tolled during the pendency of a properly filed state
post-conviction action. 28 U.S.C. § 2244(d)(2).
Following the Petitioner’s direct appeal of his two judgments to the
North Carolina Court of Appeals, the appellate court vacated the trial court’s
award of attorney’s fees and remanded the matter to the trial court . On
remand, the state trial court conducted a new hearing regarding the

attorney’s fees issue and found the Petitioner liable for attorney’s fees in the
amount of $3,210 in an order dated January 6, 2020. [5:25-cv-00145, Doc.
10-13 at 2]. Following that hearing, the Petitioner sustained his contempt
conviction and sentence.
While the Petitioner noticed an appeal at the conclusion of the remand
hearing, the Petitioner appealed only his new contempt judgment . State v.
Boger, No. COA20 -393, 2021 WL 1750858 (N.C. App. May 4, 2021)
(unpublished). The Petitioner did not appeal the new attorney’s fees
determination or any other part of his two original judgments. Id. Accordingly,
the Petitioner’s 2016 drug convictions and corresponding habitual sentences
contained in those two judgments became final at the expiration of the time
for seeking direct review of them, which is fourteen days under North
Carolina law. N.C. R. APP. 4(a). Thus, under typical circumstances, the
Petitioner’s 365-day limitations period would have begun to run on Tuesday,
January 21, 2020, fourteen days after the January 6, 2020, date of the state
trial court’s order on remand (and excluding the January 20, 2020, Martin
Luther King, Jr., federal holiday). This action, however, presents an atypical
circumstance: the Court must now address the Petitioner’s still pending pro
se Motion to Vacate filed December 27, 2019, which the Petitioner contends

tolled, and continues to toll, the running of the AEDPA’s limitations period.
[5:25-cv-00145, Doc. 14].
As mentioned briefly above, the AEDPA’s applicable limitation period
is tolled during the pendency of a properly filed state post-conviction action.
28 U.S.C. § 2244(d)(2) (emphasis added). “An application is ‘filed,’ as that
term is commonly understood, when it is delivered to, and accepted by, the
appropriate court officer for placement into the official record. ” Artuz v.
Bennett, 531 U.S. 4, 8 (2000). But, § 2244(d)(2) demands more than mere
filing. “[A]n application is ‘properly filed’ when its delivery and acceptance
are in compliance with the applicable laws and rules governing filings. These
usually prescribe, for example, the form of the document, the time limits upon
its delivery, the court and office in which it must be lodged, and the requisite
filing fee.” Id. In this matter, the Respondent argues that the Petitioner’s
Motion to Vacate was not “properly filed” with the state trial court because
such motion is a “nullity” under North Carolina law. [5:25-cv-00145, Doc. 10
at 14]. The Respondent advances two independent reasons for her position.
First, the Respondent asserts that the only authorized North Carolina
procedural mechanism available to criminally convicted persons for them to
collaterally attack their state court judgments or the execution of their
sentences, aside from a petition for writ of habeas corpus, is a Motion for

Appropriate Relief. [ Id., Doc. 10 at 15]. When creating this procedural
mechanism, the North Carolina General Assembly stated:
The relief formerly available by motion in arrest of judgment,
motion to set aside the verdict, motion for new trial, post -
conviction proceedings, coram nobis and all other post -trial
motions is available by motion for appropriate relief . The
availability of relief by motion for appropriate relief is not a bar to
relief by writ of habeas corpus.

N.C. Gen. Stat. § 15A -1411(c) (emphasis added). Based upon the state
legislature’s declaration so made and the commentary accompanying this
statute, the North Carolina Court of Appeals held that “the motion for
appropriate relief is intended to provide a single, unified procedure for raising
at the trial level errors which are asserted to have been made during the
trial.” State v. Oakley , 75 N.C. App. 99, 103 , 330 S.E.2d 59, 62 (1985)
(internal citation omitted). Because a Motion for Appropriate Relief displaced
“all other post -trial motions[,]” the Respondent contends the Petitioner’s
Motion to Vacate is not an authorized post-trial filing4 and the state trial court
was under no duty to rule upon it. As a “nullity” then, the Petitioner’s Motion
to Vacate cannot meet § 2244(d)(2)’s definition of “a properly filed state post-
conviction action.”

4 The Respondent also notes that the Petitioner was “well aware of the availability of a
motion for appropriate relief, as he filed one on 2 October 2020 and less than a year after
his ‘motion to vacate.’ ” [5:25-cv-00145, Doc. 10 at 16].

Second, the Respondent asserts that the Petitioner’s Motion to Vacate
was a nullity because, under North Carolina law, criminal defendants who
are represented by counsel may not file pro se motions.
As the North Carolina Supreme Court has held, a criminal
defendant “has only two choices – to appear in propria persona
or, in the alternative, by counsel.” State v. Williams , 363 N.C.
689, 700 (2009) (cleaned up). Further, a defendant “has no right
to appear both by himself and by counsel. Nor should he be
permitted ex gratia to do so.” State v. Farook, 381 N.C. 170, 185
(2022) (cleaned up). When a defendant is represented, he or she
is “not allowed to file pro se motions” and those pro se motions
are considered “a legal nullity.” Id.

[5:25-cv-00145, Doc. 10 at 1 9]. According to the Respondent, “Petitioner
was necessarily represented by counsel when the motion to vacate was filed
– either his appellate counsel, or the trial counsel assigned to represent him
at the attorney’s fees hearing [.]” [Id., Doc. 10 at 18]. Therefore, the
Petitioner’s Motion to Vacate was a legal nullity when it was filed and
irrelevant to any AEDPA statute of limitations calculation.
In response to the Respondent’s first argument, the Petitioner asserts
that, despite the fact that he titled his post-conviction filing as a Motion to
Vacate, the state trial court could have construed it as a Motion for
Appropriate Relief. [5:25-cv-00145, Doc. 14 at 3]. As to the Respondent’s
second argument, the Petitioner asserts that he was not represented by
counsel on December 27, 2019, when he filed his Motion to Vacate.

According to the Petitioner, he was not represented by appellate counsel
after October 15, 2019. “Appellate Counsel did not represent Plaintiff at the
attorney's fees hearing. Trial Counsel was not appointed to represent Plaintiff
at that hearing and there will be no record of such. Trial Counsel and Plaintiff
were basically adversaries at that hearing.” [Id., Doc. 14 at 2].
This Court need not be the arbiter of the parties’ disagreement
regarding the legitimacy of the Petitioner’s Motion to Vacate since the North
Carolina appellate courts have already resolved that dispute. The Petitioner
sought a writ of mandamus from the North Carolina Court of Appeals asking
it to direct the trial court to rule on his Motion to Vacate. The appellate court
refused to order the trial court to so act and denied the Petitioner’s
mandamus request. The state supreme court likewise did the same when
the Petitioner sought review there . Because these courts provided no
reasons for denying the Petitioner’s mandamus request, “[u]nder § 2254(d),
a habeas court must determine what arguments or theories supported or, as
here, could have supported, the state court's decision [.]” Harrington v.
Richter, 562 U.S. 86, 102 (2011). If there is “any reasonable argument ”
supporting the state courts’ actions, then a federal habeas court may not
disturb the state courts’ decisions. Id. at 105.

In the present matter, e ither or both arguments advanced by the
Respondent are reasonable. The Court presumes the state appellate courts
denied the Petitioner’s request to require the state trial court adjudicate his
Motion to Vacate because said motion, under North Carolina law , was null
and void ab initio, had no legal effect once filed, and therefore required no
attention from the trial court . Accordingly, the Court concludes Petitioner’s
Motion to Vacate is not a properly filed state post -conviction action , as
contemplated by 28 U.S.C. § 2244(d)(2), and therefore has no tolling effect
upon the AEDPA’s limitations period.
With the foregoing in mind, t he AEDPA limitations period for the
Petitioner to commence this action did begin to run on January 21, 2020, and
ran for 255 days until it was tolled on October 2, 2020, by the Petitioner’s
properly filed MAR. The AEDPA’s one-year limitations period remained tolled
during the pendency of this MAR proceeding. “[U]nder § 2244(d)(2) the entire
period of state post -conviction proceedings, from initial filing to final
disposition by the highest state court (whether decision on the merits, denial
of certiorari, or expiration of the period of time to seek further appellate
review), is tolled from the limitations period for federal habeas corpus
petitioners[.]” Taylor v. Lee , 186 F.3d 557, 561 (4th Cir. 1999). The trial
court denied the MAR on November 6, 2020, and the state appellate court

thereafter denied the Petitioner’s certiorari petition on October 8, 2021.
Following the appellate court’s October 8 , 2021, dismissal , the AEDPA
limitations period began running again and expired 110 days later on
Wednesday, January 26, 2022. The present action, commenced September
11, 2025, is filed more than three and half years beyond the limitations period
and is therefore subject to dismissal unless additional tolling is warranted.
Because the Petitioner has made no showing that he is entitled to
statutory tolling under § 2244(d)(1)(B) -(D), or that equitable tolling of the
statute of limitations applies, t he § 2254 petition is time -barred under §
2244(d)(1)(A). As noted by the Respondent, “Petitioner has made no
argument, either in the petition or his response to Respondent’s motions to
dismiss, that statutory or equitable tolling are appropriate in this case.” [5:25-
cv-00145, Doc. 1 9 at 5]. The Petitioner ’s retort to this observation, in its
entirety, states : “Petitioner’s every argument against Respondent’s claims
concerning tolling in her motions to dismiss are, in fact, arguments in support
thereof and should be considered as such.” [5:25-cv-00145, Doc. 21 at 1].
Despite this blanket assertion, nowhere in any of the Petitioner’s filings does
he contend that statutory tolling under any of subsections (B), (C), or (D) of
§ 2244(d)(1) apply in this action. The same holds true regarding any
applicability of the principle of equitable tolling.

Equitable tolling of the statute of limitations for an untimely § 2254
petition may apply where a petitioner demonstrates “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way” to prevent timely filing. Holland v. Florida, 560 U.S. 631,
649 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). It is appropriate
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 v. Lee, 339 F.3d
238, 246 (4th Cir. 2003) (quoting Harris v. Hutchinson , 209 F.3d 325, 330
(4th Cir. 2000)).
The Petitioner has made no showing that he diligently pursued his
rights, and he likewise has failed to show that circumstances external to his
own conduct were the bases for the late filing of his § 2254 petition. This
matter is not one of those rare instances where, due to circumstances
external to Petitioner’s own conduct, it would be unconscionable to enforce
the limitation period against him. As such, the § 2254 petition shall be
dismissed as untimely.
III. CONCLUSION
For the reasons set forth above, the Court shall grant the Respondent’s
Motion to Dismiss . Accordingly, the § 2254 petition shall be dismissed as

untimely and, therefore, the Court is without jurisdiction to consider any of
the Petitioner’s claims therein. The Petitioner’s renewed Motion to Proceed
In Forma Pauperis shall be denied as moot. Without objection by the
Respondent, the Petitioner’s Motion to Amend his Reply to the Respondent’s
Motion to Dismiss shall be granted.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,
the Court declines to issue a certificate of appealability. 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (noting that, in
order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding
that, when relief is denied on procedural grounds, a petitioner must establish
both that the dispositive procedural ruling is debatable and that the petition
states a debatable claim of the denial of a constitutional right).
O R D E R
IT IS, THEREFORE, ORDERED that:
1. The Respondent’s Motion to Dismiss [5:25-cv-00145, Doc. 9] is
GRANTED.
2. The Petition for Writ of Habeas Corpus [5:25-cv-00145, Doc. 1]
is DISMISSED.

3. The Petitioner's renewed Motion to Proceed In Forma Pauperis
[5:25-cv-00145, Doc. 15] is DENIED as moot.
4. The Petitioner’s Motion to Amend his Reply to the Respondent’s
Motion to Dismiss [5:25-cv-00145, Doc. 18] is GRANTED.
5. The Court DECLINES to issue a certificate of appealability
pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases.
6. The Clerk of Court is respectfully directed to terminate this case.
IT IS SO ORDERED.

Signed: June 9, 2026

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