WHITE v. NORTH CAROLINA DEPT. OF CORR.
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that Respondents Motion to Dismiss (Docket Entry 5 ) be granted, that Respondents Motion for Summary Judgment (Docket Entry 7 ) be denied as moot, that the Petition (Docket Entry 1 ) be dismissed, and that Judgment be entered dismissing this action. Signed by MAG/JUDGE L. PATRICK AULD on 9/13/2011. (Lapira, Sharon)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KENNETH WHITE,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
ALVIN W. KELLER, JR.,
Respondent.
1:10CV534
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Entry 1.)
(Docket
On October 28, 2008, in the Superior Court of Orange
County, Petitioner pled guilty to first-degree murder in case 07
CRS 56407.
bargain,
he
(Id. at 1.)
was
Pursuant to the exact terms of his plea
sentenced
possibility of parole.
to
life
imprisonment
(Id.; Docket Entry 6, Ex. 2.)
without
the
In return,
the State did not seek the death penalty in the case.
(Docket
Entry 6, Ex. 1.)
Rather than filing a direct appeal, Petitioner filed a motion
for
appropriate
relief,
as
well
as
an
appropriate relief, in the state trial court.
2; Docket Entry 6, Exs. 3, 4.)
amended
motion
for
(Docket Entry 1 at
Those motions bear various dates,
but Petitioner stated in at least one state court filing that he
mailed the motions on October 18, 2009.
2.)
(Docket Entry 6, Ex. 6 at
That assertion is consistent with the decision denying the
motions, which identifies their filing date as October 21, 2009.
(Id., Ex. 5 at 1.)
The motions were denied on November 6, 2009.
(Id.) On April 26, 2010, Petitioner sought certiorari in the North
Carolina Court of Appeals, which denied that request on May 14,
2010.
(Id., Exs. 6, 8.)
Petitioner signed and dated his instant Petition as submitted
to prison officials for mailing on May 24, 2010.
at 14.)
(Docket Entry 1
However, instead of mailing the Petition to this Court,
Petitioner erroneously mailed it to the United States Court of
Appeals for the Fourth Circuit, with a letter asking the Fourth
Circuit to “scrutinize” his guilty plea transcript form. (Id. at
17.) The Fourth Circuit returned the Petition, along with a letter
(dated June 24, 2010) informing Petitioner that the Fourth Circuit
did not have jurisdiction to consider the Petition and that he must
file it in a federal district court.
(Id. at 19.)
The Petition,
although still dated as submitted for mailing on May 24, 2010, was
received by this Court on July 9, 2010, in an envelope post-marked
July 7, 2010.
(See id. at 1, 14.)1
Respondent has filed both a motion to dismiss the Petition as
untimely filed (Docket Entry 5) and a motion seeking summary
judgment on the merits of Petitioner’s claims (Docket Entry 7).
Petitioner has responded to both motions in a single filing (Docket
Entry 10) and the matter now comes before the Court for decision.
1
The envelope does not appear on the Docket, but is located within the
paper file for the case. The envelope Petitioner addressed to the Fourth Circuit
is also in the paper file.
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Petitioner’s Claims
The Petition raises the following four grounds for relief:
1)
“Conviction obtained by unlawfully induced guilty plea.
Counsel stated plea would be an ‘Alford plea.’”
§ 12, Ground One.)
(Docket Entry 1,
The Petition adds that Petitioner was not made
aware of the elements of first-degree and second-degree murder,
that counsel failed to prepare for trial, that counsel coerced him
into pleading guilty by threatening him with the death penalty, and
that there was no evidence of premeditation and deliberation to
support the first-degree murder plea.
2)
(Id.)
“Petitioner was never told he could appeal his conviction
when counsel lied about the ‘Alford plea’ vs. guilty plea.”
Ground Two.)
(Id.,
According to the Petition, counsel told Petitioner
that the pleas were the same and never told him he could appeal the
“manipulated plea.”
3)
(Id.)
“Ineffectiveness
of
defense
counsel.
No
pre-trial
investigation nor preparation.” (Id., Ground Three.) The Petition
alleges that counsel never asked Petitioner what happened or acted
on
statements
made
by
family
members
who
told
counsel
that
Petitioner was acting strangely and talking about suicide shortly
before the murder, but that counsel instead kept telling Petitioner
to plead guilty or he would receive the death penalty if he went to
trial.
(Id.)
4) “Petitioners [sic] crime did not have the required elements
needed to be convicted of first[-]degree murder.”
Four.)
(Id., Ground
In this regard, the Petition asserts that Petitioner did
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not tell his attorney what happened because he could not (and still
cannot) remember the murder.
(Id.)
the
no
Petition
declares
that
Despite this lack of memory,
evidence
of
premeditation
or
deliberation exists and that, had counsel conducted a proper
investigation, he would have seen that the “facts” show “only a
crime of passion” for which Petitioner would have demanded a trial.
(Id.)
Discussion
Respondent requests dismissal on the ground that the Petition
was filed2 beyond the one-year limitation period imposed by 28
U.S.C. § 2244(d)(1).
In order to assess this argument, the Court
first must determine when Petitioner’s one-year period to file his
§ 2254 petition commenced. In this regard, the United States Court
of Appeals for the Fourth Circuit has explained that:
Under § 2244(d)(1)(A)-(D), the one-year limitation period
begins to run from the latest of several potential
starting dates:
2
“In [Houston v. Lack, 487 U.S. 266 (1988)], the Supreme Court held that
a pro se prisoner’s notice of appeal is filed on the date that it is submitted
to prison officials for forwarding to the district court, rather than on the date
that it is received by the clerk.” Morales-Rivera v. United States, 184 F.3d
109, 110 (1st Cir. 1999). At least eight circuits “have applied th[is] prisoner
mailbox rule to [establish the ‘filing’ date of] motions under 28 U.S.C. § 2254
or § 2255.” Id. at 110-11 & n.3. In two published opinions issued since that
consensus emerged, however, the United States Court of Appeals for the Fourth
Circuit has declined to decide whether the prison mailbox rule applies in this
context. See Allen v. Mitchell, 276 F.3d 183, 184 n.1 (4th Cir. 2001) (“Allen’s
petition was dated March 9, 2000, and it should arguably be treated as having
been filed on that date. Cf. United States v. Torres, 211 F.3d 836, 837 n.3 (4th
Cir. 2000) (declining to decide whether prison mailbox rule applies to filing of
federal collateral review applications in district court). We take no position
on that question here.”); but see Smith v. Woodard, 57 Fed. Appx. 167, 167 n.*
(4th Cir. 2003) (implying that Houston’s rule governed filing date of § 2254
petition); Ostrander v. Angelone, 43 Fed. Appx. 684, 684-85 (4th Cir. 2002)
(same).
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(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.
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008) (emphasis
added).
The record does not reveal any basis for concluding that
subparagraphs (B), (C), or (D) of § 2244(d)(1) apply in this case.
As a result, Petitioner’s one-year limitation period commenced on
“the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review,” 28 U.S.C. § 2244(d)(1)(A).
The Court thus must ascertain
when direct review (or the time for seeking direct review) of
Petitioner’s underlying conviction(s) ended.
Here, Petitioner’s judgment was entered on October 28, 2008.
Ordinarily, the time to file a habeas petition would start to run
at the expiration of the time for filing a direct appeal, which is
fourteen days in North Carolina, see N.C.R. App. P. 4(a). However,
in Petitioner’s case, he pled guilty to first-degree murder, which
is a Class A felony, for which the only possible penalties were
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death and life imprisonment without parole.
See N.C. Gen Stat.
§ 14-17.
Petitioner received the minimum penalty of life without
parole.
North Carolina severely limits the right to appeal for
defendants who have pled guilty.
See N.C. Gen. Stat. § 15A-
1444(e).
Because none of the limited grounds for direct appeal applied
in Petitioner’s case, he had no appeal as of right under North
Carolina law.
See State v. Hamby, 129 N.C. App. 366, 368-70, 499
S.E.2d 195, 196-97 (1998).
As a result, Petitioner’s time to file
a habeas petition in this Court began to run on the day judgment
was entered.
2004).
Hairston v. Beck, 345 F. Supp. 2d 535, 537 (M.D.N.C.
Petitioner’s time to file then ran for 357 days until he
filed his motions for appropriate relief on October 21, 2009.
The one-year federal habeas limitation period is tolled for
“the entire period of state post-conviction proceedings, from
initial filing to final disposition by the highest court (whether
decision on the merits, denial of certiorari, or expiration of the
period of time to seek further appellate review).”
186 F.3d 557, 561 (4th Cir. 1999).
Taylor v. Lee,
Therefore, as of October 21,
2009, the limitations period was stayed, but Petitioner had only
eight days left to file in this Court once his state court postconviction review concluded.
The limitations period remained
stayed through May 14, 2010, when the North Carolina Court of
Appeals denied Petitioner’s petition for certiorari seeking review
of the denial of his motion for appropriate relief. At that point,
the time limit began to run again and expired eight days later on
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Saturday, May 22, 2010, which means that Petitioner then had until
Monday, May 24, 2010, to file in this Court.
His Petition was not
received by the Court until July 9, 2010, in an envelope postmarked July 7, 2010. His Petition, therefore, is well out of time.
On May 24, 2010, his last day to file, Petitioner did sign and
date his Petition before erroneously mailing it to the Fourth
Circuit,
which
did
not
have
jurisdiction
over
the
case.
Unfortunately for Petitioner, a flawed filing in federal court does
not toll the limitations period.
See Duncan v. Walker, 533 U.S.
167, 181-82 (2001) (filing of unexhausted federal petition did not
toll statute); United States v. Kirkham, 367 Fed. Appx. 539, 543
(5th Cir. 2010) (ruling that petitioner’s “failure to mail his
§ 2255 motion to the correct court within the one-year limitation
period was, at best, a ‘garden variety’ claim of excusable neglect
which is insufficient to justify application of the doctrine of
equitable tolling”); Corjasso v. Ayers, 278 F.3d 874, 876-78 (9th
Cir. 2002) (rejecting tolling for time petition was filed in wrong
federal district); Sandifer v. Thaler, No. 3:09-CV-01638-K, 2010 WL
92255, at *2 n.2 (N.D. Tex. Jan. 6, 2010) (unpublished) (declining
to credit time during which petitioner mailed petition to United
States Court of Appeals for the Fifth Circuit in determining
timeliness of petition); Bryant v. Bock, No. CV08-0614-PHX-SRB,
2009 WL 281049, at *9 (D. Ariz. Feb. 3, 2009) (unpublished)
(“Petitioner’s own negligence in mailing his petition to the wrong
court . . . do[es] not justify equitable tolling.”); Enriquez v.
United States, Nos. 802CR370T30MSS, 805CV94T30MAP, 2005 WL 2127934,
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at *1 & n.1 (M.D. Fla. Aug. 31, 2005) (unpublished) (denying
equitable toling for period during which petitioner mailed his
petition to United States Supreme Court); Hood v. Galaza, 47 F.
Supp. 2d 1144, 1147 (S.D. Cal. 1999) (same as Corjasso); but see
Johnson v. Franklin, No. CIV-06-0195-HE, 2006 WL 3350741, at *2
(W.D. Okla. Nov. 17, 2006) (unpublished) (permitting equitable
tolling where petitioner filed federal habeas petition in state,
rather
than
federal,
court).
Because
Petitioner’s
erroneous
mailing of the Petition to the Fourth Circuit on May 24, 2010, did
not toll the federal habeas limitations period, his time to file
expired that day and his subsequent mailing of the Petition to this
Court (on or about July 7, 2010, the date of the post-mark) and the
Court’s receipt of the Petition (on July 9, 2010) both fall outside
the statute of limitations.
Petitioner has not advanced arguments that would counter any
of the foregoing calculations other than to make an unsupported
statement that he filed his initial motion for appropriate relief
on October 8, 2009.
(See Docket Entry 10 at 2.)
Even if the Court
credited this assertion (which both the state court’s order and
Petitioner’s own prior court filings contradict (Docket Entry 6,
Exs. 5, 6)), the 13-day difference between October 8 and 21, 2009,
would not make the Petition timely.
The
Petition,
however,
does
assert
that
a
“fundamental
miscarriage of justice” will occur if the Court finds the Petition
time-barred, that Petitioner did not have counsel or access to the
necessary books to raise his claim earlier, and that he “only
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recently” realized that the limitations period existed.
(Docket
Entry
request
1,
at
13.)
These
arguments
appear
either
to
equitable tolling or an exception to the limitation period.
Petitioner’s invocation of the phrase “fundamental miscarriage
of justice” may represent a claim of actual innocence of the sort
often used to attempt to satisfy the “miscarriage of justice”
exception to a procedural default.
298, 315 (1995).
See Schlup v. Delo, 513 U.S.
In the context of a petition barred by the
statute of limitations, a significant question exists as to the
viability of an “actual innocence” exception.
Compare Souter v.
Jones, 395 F.3d 577, 599 (6th Cir. 2005), with Escamilla v.
Jungwirth, 426 F.3d 868, 872 (7th Cir. 2005).
Assuming that such
an exception does apply in this context, a petitioner would have to
“support his allegations of constitutional error with new reliable
evidence--whether
trustworthy
it
be
eyewitness
exculpatory
accounts,
scientific
evidence,
critical
physical
or
evidence--that was not presented at trial.”
324.
Schlup, 513 U.S. at
That evidence must demonstrate that “‘a constitutional
violation has probably resulted in the conviction of one who is
actually innocent.’” Id. at 327 (quoting Murray v. Carrier, 477
U.S. 478, 496 (1986)).
Under this standard, a “petitioner must
show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.”
Id.
Moreover, a petitioner must show factual innocence and not merely
legal insufficiency.
Wright v. Angelone, 151 F.3d 151, 158 n.2
(4th Cir. 1998).
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If Petitioner is attempting to satisfy these standards, he has
failed.
would
He has not presented evidence, either new or old, that
show
his
factual
innocence.
Petitioner’s
“fundamental
miscarriage of justice” argument will not excuse his failure to
comply with the statute of limitations.
As for Petitioner’s lack of counsel and knowledge of the law,
these arguments appear to invoke the doctrine of equitable tolling,
which
the
United
States
Supreme
Court
generally
has
found
applicable in this context. Holland v. Florida, 560 U.S. ___, ___,
130 S.Ct. 2549, 2562 (2010).
Equitable tolling may excuse an
otherwise untimely filing when a petitioner “shows ‘(1) that he has
been
pursuing
his
rights
diligently,
and
(2)
that
some
extraordinary circumstance stood in his way’ and prevented timely
filing.”
Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)).
Unfortunately for Petitioner, unfamiliarity with the
legal
process
and
lack
of
representation
constitute grounds for equitable tolling.
by
counsel
do
not
United States v. Sosa,
364 F.3d 507, 512 (4th Cir. 2004).
Petitioner’s assertion that he did not have access to the
books he needed to prepare his Petition also falls short. Although
North Carolina prisons do not have law libraries, North Carolina
Prisoner Legal Services (“NCPLS”) constitutes a proper alternative
means of affording inmates the ability to file a petition.
See
Bell v. Keller, No. 5:09-HC-2167-D, 2011 WL 845913, at *4 (E.D.N.C.
Mar. 8, 2011) (unpublished) (“[L]ack of access to a law library
does not toll the statute of limitations where, as here, the state
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makes legal assistance to inmates available through NCPLS.”); Coil
v. Peterkin, No. 1:07CV145, 2009 WL 3247848, at *10 (M.D.N.C. Oct.
5, 2009) (unpublished) (citing collection of cases in Wrenn v.
Freeman, 894 F. Supp. 244, 248 (E.D.N.C. 1995), recognizing that
NCPLS “satisfies the Constitution’s requirement that inmates be
given meaningful access to the courts”).
Petitioner has not explained why he failed to seek assistance
from NCPLS.
Nor has Petitioner offered anything but a conclusory
assertion that lack of access to unspecified books delayed his
filing.
Petitioner has not demonstrated that any “extraordinary
circumstances” entitle him to equitable tolling.
His Petition was
filed out of time and should be dismissed.
IT
IS
THEREFORE
RECOMMENDED
that
Respondent’s
Motion
to
Dismiss (Docket Entry 5) be granted, that Respondent’s Motion for
Summary Judgment (Docket Entry 7) be denied as moot, that the
Petition (Docket Entry 1) be dismissed, and that Judgment be
entered dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 13, 2011
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