WALL v. N.C. DEPARTMENT OF CORRECTION

Filing 8

MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE RUSSELL A. ELIASON on 11/24/08 re 5 MOTION to Dismiss filed by N.C. DEPARTMENT OF CORRECTION be granted, that the habeas petition (Docket No. 2 ) be dismissed, and that Judgment be entered dismissing this action. (Wilson, JoAnne)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SHERMAN K. WALL, Petitioner, v. THEODIS BECK, Respondent.

) ) ) ) ) ) ) ) )

1:08CV434

MEMORANDUM OPINION AND RECOMMENDATION OF MAGISTRATE JUDGE ELIASON Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November

17, 2000, in the Superior Court of Richmond County, Petitioner pled guilty to second-degree murder and robbery with a dangerous weapon after having achieved the status of a violent habitual felon in cases 99 CRS 5826-27 and 00 CRS 6697. Pursuant to the terms of his

plea bargain, he was then sentenced to two consecutive terms of life imprisonment without parole. Petitioner did not file a direct appeal. However, on November 14, 2006, Petitioner prepared and submitted a motion seeking a stenographic transcript and a motion for appropriate relief in the Superior Court of Richmond County. The motion for appropriate

relief did not succeed, but Petitioner pursued it through the North Carolina appellate courts, also without success. He then submitted the current habeas action, which is dated June 20, 2008 and was filed on June 26, 2008. habitual felon The petition alleges that Petitioner's was defective, that he received

indictment

ineffective assistance of counsel, and that his right to be free from double jeopardy was violated. Respondent has now filed a motion to have the petition dismissed for being filed out of time. (Docket No. 5.) Despite

being advised of his right to file a response (Docket No. 7), Petitioner has not done so. the Court for a decision. Discussion Respondent requests dismissal on the ground that the petition was filed1 outside of the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132 ("AEDPA"). 28 U.S.C. § 2244(d)(1). The AEDPA amendments apply to Lindh v. The motion to dismiss is now before

petitions filed under § 2254 after April 24, 1996. Murphy, 521 U.S. 320 (1997).

Interpretations of the limitation periods found in 28 U.S.C. §§ 2244(d)(1) and 2255 have equal applicability to one another. Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). The limitation period ordinarily starts running from the date when the judgment of conviction became final at the end of direct review. Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000).

Finality has been construed to mean when a petitioner may no longer seek further review because of (1) the denial of a petition for certiorari to the United States Supreme Court; or, (2) the

expiration of the time to file such a petition.
1

Clay v. United

A petition is filed by a prisoner when the petition is delivered to prison authorities for mailing. Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999).

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States, 537 U.S. 522 (2003); Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002). Where no direct appeal is filed, the conviction

becomes final when the time for filing a notice of appeal expires. See Clay. The one-year limitation period is tolled while state postconviction proceedings are pending. Harris, supra. The suspension is for "the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest court (whether decision of the on the merits, of time denial to seek of certiorari, or

expiration review)."

period

further

appellate

Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999).

However, the tolling does not include the time to file a certiorari petition to the United States Supreme Court from denial of state post-conviction relief. Cir. 1999). Ott v. Johnson, 192 F.3d 510, 513 (5th

For those petitioners whose conviction became final

prior to the effective date of AEDPA, they have one year from that effective date, or to and including April 23, 1997, to file a Section 2254 petition. Cir. 1998). The Fourth Circuit, as well as a number of courts, have held that the one-year limitation period is subject to equitable Brown v. Angelone, 150 F.3d 370, 375 (4th

tolling. cases).

Harris, supra; Sandvik, 177 F.3d at 1271 (collecting Equitable tolling may apply when a petitioner has been

unable to assert claims because of wrongful conduct of the state or its officers. A second exception is when there are extraordinary

circumstances, such as when events are beyond the prisoner's -3-

control and the prisoner has been pursuing his rights diligently. Pace v. DiGuglielmo, 544 U.S. 408 (2005); Harris, supra; Akins v. Circumstances are

United States, 204 F.3d 1086 (11th Cir. 2000).

beyond a prisoner's control if he has been prevented in some extraordinary way from exercising his rights. McGinnis, 208 F.3d 13 (2d Cir. 2000). prisoner is actively misled or See Smith v.

This might occur where a prevented in some

otherwise

extraordinary way from exercising his rights. 184 F.3d 398, 402 (5th Cir. 1999). On

Coleman v. Johnson, the other hand,

unfamiliarity with the legal process, lack of representation, or illiteracy does not constitute grounds for equitable tolling. Harris, supra; Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). Likewise, mistake of counsel does not serve as a ground for equitable tolling. Taliani v. Chrans, 189 F.3d 597 (7th Cir. Nor are prison conditions, such as

1999); Sandvik, 177 F.3d 1269.

lockdowns or misplacement of legal papers, normally grounds for equitable tolling. Akins, 204 F.3d 1086. Waiting years to raise

claims in state court and months to raise them in federal court shows lack of due diligence. Pace, supra. Finally, in order to

show diligence, the prisoner must show diligence not merely at the federal level, but throughout the entire post-conviction process in order to have equitable tolling available to him. F.3d at 402. Here, Petitioner's judgment was entered on November 17, 2000. Because he did not file a direct appeal, his conviction became final, at the latest, ten days later. -4N.C.R. App. P. 4(a)(later Coleman, 184

amended to fourteen days).

His one-year period to file a habeas It expired a year later without

petition then began to run.

Petitioner having filed his petition and without him having filed any document in the state courts which would have tolled the running of the one-year time period. nothing for nearly six years. In fact, Petitioner filed

He also relies on no new laws or

facts in making his claims. They are entirely based on events that were, or at least could have been, known to him at the time of his conviction. 2244(d). His petition was clearly filed out of time under §

Further, Petitioner makes no argument in support of

equitable tolling and no basis for granting any is apparent in the record. Petitioner has offered no explanation as to why he waited His petition is time-barred, there

so long to bring his claims.

are no grounds for equitable tolling, and Respondent's motion to dismiss should be granted. IT IS THEREFORE RECOMMENDED that Respondent's motion to

dismiss (Docket No. 5) be granted, that the habeas petition (Docket No. 2) be dismissed, and that Judgment be entered dismissing this action.

________________________________ United States Magistrate Judge

November 24, 2008

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