POSEY v. ATTORNEY GENERAL et al

Filing 7

RECOMMENDED RULING - MAGISTRATE JUDGE re 4 MOTION to Dismiss on Statute of Limitations Grounds before Requiring a Full Answer and Response to the Merits of Petitioner's Claims and Initial Answer filed by DOC be granted, 2 Petition for Writ of Habeas Corpus filed by JEROME ROBERT POSEY be dismissed. Signed by MAG/JUDGE P. TREVOR SHARP on 10/26/10. (Wilson, JoAnne)

-PTS POSEY v. ALVIN W. KELLER, JR., et al

Doc. 7

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF NORTH CAROLINA

J E R O M E ROBERT POSEY, P e titio n e r , v. A L V I N W. KELLER, JR., R esp o n d en t.

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R E C O M M E N D A T I O N OF UNITED STATES MAGISTRATE JUDGE P e titio n e r, a prisoner of the State of North Carolina, filed a petition for a writ of h a b e a s corpus pursuant to 28 U.S.C. § 2254. On January 15, 2008, Petitioner pled guilty to a ss a u lt with a deadly weapon while having attained the status of a habitual felon in cases 0 6 CRS 98919 and 07 CRS 24446. (Docket No. 5, Resp't Br. Supp. Mot. to Dismiss, Ex. 1.) H e was then sentenced to 80 to 105 months of imprisonment. (Id. Ex. 2.) Petitioner did not p u rs u e a direct appeal. However, on April 29, 2008, he did file a motion that was construed b y the state trial court as a motion for appropriate relief. (Id. Ex. 3.) When this motion was d e n ie d , Petitioner sought certiorari from the North Carolina Court of Appeals. This was d e n ie d on August 6, 2008. (Id. Ex. 7.) Petitioner also filed a motion for certiorari and a m o tio n for "Judgment Summary" with the North Carolina Supreme Court. These were d is m is s e d on February 5 and March 19, 2009, respectively. (Id. Exs. 8, 9.)

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P e titio n e r next filed a second motion for appropriate relief on May 20, 2009. (Id. Ex. 1 0 .) This was also denied and Petitioner again sought a writ of certiorari from the North C a ro lin a Court of Appeals. His certiorari petition was denied on July 28, 2009. (Id. Ex. 14.) A p p ro x im a te ly eleven months later, on June 28, 2009, Petitioner signed, dated, and submitted h is habeas petition to prison authorities for mailing. The petition was erroneously filed in th e United States District Court for the Eastern District of North Carolina, but was later tra n s f e rr e d to this Court. The petition raises four potential claims for relief. The first of these asserts that he d id not fully understand his plea agreement and that his attorney failed to advise him that the i n d ic tm e n t in his case was invalid. Similarly, his second claim alleges that he was not p ro p e rly advised about the rights he waived by pleading guilty. His third claim states yet a g a in that his guilty plea was not fully explained by his attorney. Finally, his fourth claim asse rts that he received ineffective assistance of counsel because his attorney did not prepare a defense, did not explain the proceedings, and did not advise him about his right to appeal. R e sp o n d e n t has responded to the petition with a motion to dismiss. (Docket No. 4.) Despite b e in g advised of his right to oppose that motion (Docket No. 6), Petitioner has not filed any re sp o n s e . Respondent's motion is now before the Court for a decision. D is c u s s io n R e sp o n d e n t requests dismissal on the ground that the Petition was filed outside of the o n e -ye a r limitation period imposed by 28 U.S.C. § 2244(d)(1). In order to assess this

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a rg u m e n t, the Court first must determine when Petitioner's one-year period to file his § 2254 p e titio n commenced. In this regard, the United States Court of Appeals for the Fourth C irc u it has explained that: U n d e r § 2244(d)(1)(A)-(D), the one-year limitation period begins to run from th e latest of several potential starting dates: (A ) the date on which the judgment became final by the c o n c lu s io n of direct review or the expiration of the time for s e e kin g such review; (B ) the date on which the impediment to filing an application c re a te d by State action in violation of the Constitution or laws o f the United States is removed, if the applicant was prevented f ro m filing by such State action; (C ) the date on which the constitutional right asserted was in itia lly recognized by the Supreme Court, if the right has been n e w ly recognized by the Supreme Court and made retroactively a p p lic a b le to cases on collateral review; or ( D ) the date on which the factual predicate of the claim or c la im s presented could have been discovered through the e x e rc is e of due diligence. G r e e n v. Johnson, 515 F.3d 290, 303-04 (4th Cir.), cert. denied, 2 9 9 9 (2008) (emphasis added). T h e 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 c o m m e n c e d on "the date on which the judgment became final by the conclusion of direct rev iew or the expiration of the time for seeking such review," 28 U.S.C. § 2244(d)(1)(A). T h e Court thus must ascertain when direct review (or the time for seeking direct review) of U.S. , 128 S. Ct.

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P e titio n e r's underlying conviction ended. Here, Petitioner did not file a direct appeal. T h e re f o re , his conviction became final, at the latest, when the time for him to file any p o s s ib le appeal expired. This occurred fourteen days after the entry of his judgment, or Jan u ary 29, 2008. See N.C.R. App. P. 4(a).1 P e titio n e r's time to file in this Court began to run on January 29, 2008 and continued to run for three months until he filed his first motion for appropriate relief on April 29, 2008. T h is motion tolled the running of the limitation period. It then remained tolled while state p o s t-c o n v ic tio n proceedings were pending. See Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1 9 9 9 ). Respondent argues that the limitation period should be tolled only through the denial o f Petitioner's first petition for certiorari with the North Carolina Court of Appeals. This a rg u m e n t is well-taken, however, it again makes no difference. Even if the Court considered P etitio n er's filings with the North Carolina Supreme Court to toll the period, they were d e n ie d by March 19, 2009. The year to file in this Court then began to run again and ran for tw o months, or until May 20, 2009, when Petitioner filed his second motion for appropriate re lief . By that time five months of his year to file had expired, leaving him seven months to f ile in this court. On July 28, 2009, Petitioner's second petition for certiorari was denied by th e North Carolina Court of Appeals. His time to file began to run again, and then expired

Respondent argues that Petitioner's conviction became final on the date judgment was entered due to the fact that he did not file an appeal. Because the fourteen day appeal period makes no difference in this case, the Court need not decide the issue, but will give P e titio n e r the benefit of the doubt in this case. -4-

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s e v e n months later. Petitioner did not file his habeas petition until June 28, 2010, which was f o u r months after his time to file expired using even the most generous calculations. A s stated above, Petitioner has filed nothing to contest the calculations set out above o r to deny that his petition was filed outside of the allowed one-year time period. Still, when a sk e d in the petition form why his petition was not time barred, Petitioner answered that he w a s proceeding pro se, that he does not understand the law or legal proceedings, and that he w a s denied access to transcripts. Although Petitioner does not explicitly use the term, these s ta te m e n ts appear to be an argument in favor of equitable tolling. T h e Supreme Court has determined that the one-year limitation period imposed by § 2 2 4 4 (d ) is subject to equitable tolling. Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2 5 6 2 (2010). Equitable tolling may apply when a petitioner "shows `(1) that he has been p u rs u in g his rights diligently, and (2) that some extraordinary circumstance stood in his way' a n d prevented timely filing." Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). U n f a m ilia rity with the legal process and lack of representation do not constitute grounds for e q u ita b le tolling. See United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Likewise, a mere mistake by counsel does not warrant equitable tolling. See Holland, 130 S. Ct. at 2 5 6 4 . Nor do prison conditions, such as transfers, lockdowns, or misplacement of legal p a p e rs , normally provide a basis for equitable tolling. See Dodd v. United States, 365 F.3d 1 2 7 3 , 1283 (11th Cir. 2004); Allen v. Johnson, 602 F. Supp. 2d 724, 727-28 (E.D. Va. 2009), a p p e a l dismissed, No. 09-6700, 2010 WL 3736256 (4th Cir. Sept. 21, 2010).

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H e re , Petitioner's first equitable tolling argument is that he has been proceeding pro s e and does not understand legal proceedings. As just noted, this does not qualify as " e x t ra o r d in a r y circumstances." Petitioner's second argument is that he was denied access to a transcript. This argument is flawed because, despite Petitioner's alleged lack of access, h e did manage to pursue his case in the state courts and file his petition in this Court. As n o te d by Respondent, courts have rejected arguments that a lack of transcripts tolls the A E D P A time limit where, as here, a petitioner is able to file without them.2 Donovan v. M a in e , 276 F.3d 87, 93 (1st Cir. 2002); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001). P e titio n e r is not entitled to equitable tolling. His petition is untimely and should be dismissed a s such. F o r reasons set forth above, IT IS RECOMMENDED that Respondent's motion to d is m is s (Docket No. 4) be granted and that the habeas corpus petition of Jerome Robert P o s e y (Docket No. 2) be dismissed.

/s/ P. Trevor Sharp United States Magistrate Judge

D a te : October 26, 2010

To the extent that Petitioner could be using the lack of transcripts to claim a Statec re a te d impediment which would alter the starting of the one-year period to file under § 2244(d)(1)(B), this argument also fails. See Lloyd v. Van Natta, 296 F.3d 630, 633-34 (7th C ir. 2002).

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