WESTMORELAND v. BEAL

Filing 13

ORDER, MEMORANDUM AND OPINION AND RECOMMENDATION NO. 2 signed by MAG/JUDGE L. PATRICK AULD on 1/11/12 that Petitioner's "Motion to Leave to File an Amended Complaint, and Reincorporate into Record Petitioners § 2254 Claim Ground Five A mendment No #1" (Docket Entry 11 ) be denied as futile except to the extent that it points the Court to the fifth claim for relief raised in the original Petition. As to that claim, it should be considered as properlyraised, but then be denied on its merits. The Habeas Petition, including that fifth claim for relief (Docket Entry 1 ), should be denied and Judgment should be entered dismissing this action. IT IS ORDERED that Petitioners "Motion for Enlargement of time L.R. 6.1(a), et seq." (Docket Entry 10 ) is granted and that, within 14 days of the mailing of this Recommendation to Petitioner,he may file objections under Fed R. Civ. P. 72(b) to both Recommendations that have been entered in his case. (Wilson, JoAnne)

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

DONALD WESTMORELAND,
Petitioner,
v.
ENNIS OATES,
Respondent.

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1:10CV705

ORDER, MEMORANDUM OPINION AND RECOMMENDATION NO. 2
OF UNITED STATES MAGISTRATE JUDGE
Petitioner,

a

prisoner

of

the

State

of

North

Carolina,

previously filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 in which he raised five potential claims for
relief.

(Docket Entry 1.)

After briefing by the parties, the

undersigned entered a Memorandum Opinion and Recommendation which
recommended that a Motion for Summary Judgment filed by Respondent
be granted and that the Petition be denied.

(Docket Entry 8.)

Petitioner thereafter filed a motion seeking an extension of time
to file objections to the Recommendation.

(Docket Entry 10.)

However, he also filed a motion seeking to amend his Petition
(Docket Entry 11), along with a supporting brief (Docket Entry 12).
Those motions are now before the Court.
Petitioner’s motion to amend can be divided into two very
different parts.

The first merely seeks to clarify the original

Petition by pointing to the location of Petitioner’s fifth claim
for relief in the documents that were submitted. (See Docket Entry
11 at 2.)

As the Court noted in the prior Recommendation,

Petitioner’s petition form stated that there was a fifth claim for
relief, but then said “Please see amendment no. #1.” (Docket Entry
1, § 12, Ground Four,(b).)

However, no amendment setting out a

claim was immediately attached to the Petition.
the

Court

construed

Petitioner’s

fifth

For that reason,

claim

as

being

an

ineffective assistance of counsel claim that he had raised in the
state courts based on his attorney’s failure to raise the other
claims set out in the Petition.
be denied.

It was recommended that the claim

(Docket Entry 8 at 8-9.)

Petitioner, in his motion to amend, now clarifies that his
fifth claim was actually set out on two pages labeled as “Amendment
No. #1” which somehow became located in the middle of a state court
document
Petition.

that

Petitioner

submitted

in

conjunction

with

his

That claim is different from the fifth claim discussed

by the Court in its prior Recommendation.

Petitioner states that

he does not know how the Amendment containing his fifth claim came
to be located within the other document, and the same is true for
the Court.

Giving Petitioner the benefit of the doubt, the Court

will address his fifth claim as raised in “Amendment No. #1” to the
original Petition.
Petitioner states that the habitual felon indictment in his
case was fatally flawed because it did not meet the requirements of
N.C. Gen. Stat. § 14-7.1.

That statute defines a “habitual felon”

as a “person who has been convicted of or pled guilty to three
felony offenses in any federal court or state court in the United
States or combination thereof.”

As Petitioner correctly notes, it
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further requires, pertinent to this matter, that “[t]he commission
of a second felony shall not fall within the purview of this
Article unless it is committed after the conviction of or plea of
guilty to the first felony.”

Likewise, “[t]he commission of a

third felony shall not fall within the purview of this Article
unless it is committed after the conviction of or plea of guilty to
the

second

felony.”

Petitioner

contends,

albeit

without

explanation, that his habitual felon indictment did not meet the
requirements of the statute and faults his attorney for not raising
this claim.

(Docket Entry 11, Ex. 1.)

Petitioner’s

claim

quickly

fails.

To

prove

ineffective

assistance of counsel, Petitioner must establish, first, that his
attorney’s performance fell below a reasonable standard for defense
attorneys and, second, that he suffered prejudice as a result. See
Strickland v. Washington, 466 U.S. 668 (1984).

The habitual felon

indictment in Petitioner’s case states that Petitioner committed
the felony of Breaking, Entering, and Larceny on October 11, 1995,
and pled guilty to that crime on April 17, 1996, that Petitioner
committed the felony of Breaking, Entering, and Larceny on June 17,
1993, and pled guilty to that crime on July 19, 1994, and that
Petitioner committed the felony of Escape on April 8, 1973, and
pled guilty to that crime on May 8, 1973. (See Docket Entry 5, Ex.
1 at 7.) Thus, it alleges that Petitioner committed three felonies
and, if the felonies are arranged chronologically, the second
felony occurred after Petitioner’s plea of guilty to his first
felony and his third felony occurred after Petitioner’s plea of
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guilty to his second felony.

(See id.)

Although the indictment

lists the felonies in reverse chronological order and refers to the
1994 conviction as the “second felony” and the 1973 felony as the
“third felony,” it also alleges that Petitioner “was convicted of
at least three (3) successive felony offenses” and that Petitioner
violated N.C. Gen. Stat. § 14-7.1.

(Id.)

An indictment in North Carolina is sufficient if it will allow
the accused to “‘prepare an adequate defense and protect him from
double jeopardy.’”

State v. McKoy, 196 N.C. App. 650, 656, 675

S.E.2d 406, 411 (2009) (quoting State v. Haddock, 191 N.C. App.
474, ____, 664 S.E.2d 339, 342 (2008)).

“An indictment is not

facially invalid as long as it clearly sets forth the elements of
the offense charged so that a person of common understanding would
be notified of the charges against him.” State v. Griffin, 713
S.E.2d 185, 188 (N.C. App. 2011) (citing McKoy, supra).

Regarding

habitual felon indictments in particular,
“It is well established that an indictment is sufficient
under the Habitual Felons Act if it provides notice to a
defendant that he is being tried as a recidivist.” State
v. Williams, 99 N.C. App. 333, 335, 393 S.E.2d 156, 157
(1990). The habitual felon indictment “must set forth the
date that prior felony offenses were committed, the name
of the state or other sovereign against whom said felony
offenses were committed, the dates that pleas of guilty
were entered to or convictions returned in said felony
offenses, and the identity of the court wherein said
pleas or convictions took place.” N.C. Gen. Stat.
§ 14–7.3 (2005).
State v. McGill, No. COA05–1071, 2006 WL 1529028 (N.C. App. June 6,
2006) (unpublished).

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Although Petitioner’s indictment may have listed his predicate
felonies in reverse order, that did not render it insufficient
under

North

Carolina

law.

It

correctly

listed

the

predicate

offenses themselves and put Petitioner on clear notice that he was
being charged as a recidivist based on those predicate felonies.
Petitioner had every chance to prepare a defense and to avoid
double jeopardy.

Had his attorney raised any objection it would

have surely been denied.

Counsel did not fail to act according to

the reasonable standards for defense attorneys in not objecting to
the indictment and, in any event, could not have prejudiced
Petitioner by failing to object.

Petitioner’s fifth claim for

relief, now clearly raised and considered, should be denied.
The second portion of Petitioner’s motion to amend is quite
different from the part that discusses his fifth claim for relief.
Rather than point to, explain, or expand an existing claim, it sets
out new claims.

(See Docket Entry 11 at 3-6.)

claim for relief has just been discussed.

Petitioner’s fifth

His other four original

claims were that North Carolina’s habitual felon law violated
Petitioner’s right to be free from double jeopardy, the habitual
felon law violated Petitioner’s right to equal protection, his
lengthy consecutive sentences as a habitual felon amounted to cruel
and unusual punishment, and the deconsolidation of Petitioner’s
breaking

and/or

entering

and

larceny

convictions

resentencing violated N.C. Gen. Stat. § 15A-1335.
Entry 8 at 3-4.)

at

his

(See Docket

In his motion to amend, Petitioner seeks to add

the following claims:
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1) he received ineffective assistance of counsel because his
attorney did not object to perjured testimony given by the State’s
main witness (see Docket Entry 11 at 3-4);1
2) ineffective assistance of counsel for failing to demand
production of evidence from the State, failure to object to
witnesses’ testimony, and failure to raise these issues on appeal
(see id. at 4-5); and
3) prosecutorial misconduct for presenting perjured testimony
and failing to preserve evidence (see id. at 5-6).
A habeas petition “may be amended or supplemented as provided
in the rules of procedure applicable to civil actions.”
§ 2242.

28 U.S.C.

Therefore, a motion to amend in a habeas case is governed

by Fed. R. Civ. P. 15.

Because Petitioner’s motion is made far

more than 21 days after the service of his Petition or the filing
of a responsive pleading, he may amend only with leave of court or
the

consent

of

Respondent.

See

Fed.

R.

Civ.

P.

15(a)(1).

Respondent has not consented to the amendment. (See Docket Entries
dated Nov. 16, 2011, to present.)

As for leave of the court,

“leave to amend shall be given freely, absent bad faith, undue
prejudice to the opposing party, or futility of amendment.” United
States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000).

Here,

futility requires that Petitioner’s motion to amend be denied.
The insurmountable hurdle for Petitioner is the applicable
statute

of

limitations.

As

1

discussed

in

the

initial

This claim also includes an allegation that the State withheld
exculpatory evidence, in the form of audio tape that would have confirmed the
perjury.

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Recommendation, the facts and issues surrounding the timeliness of
the original Petition are complicated.

However, this much is

clear. Petitioner’s conviction was final and his attempts at state
court relief had ended at least by the time he submitted his
original Petition.

Nevertheless, more than a year passed between

the time that Petitioner filed his original Petition on September
14, 2010, and the time he filed his current motion to amend on
November 16, 2011.

This means that any new claim raised in the

motion

would

to

amend

§ 2244(d)(1)(A).

be

time

barred

under

28

U.S.C.

Likewise, Petitioner does not claim any state-

created impediment to filing in this Court, his claims are not
based on recent Supreme Court case law, and it is clear from his
motion to amend that he knew about the facts behind his claims at
the time of his trial in 2000. Therefore, § 2244(d)(1)(B)-(D) also
do not give Petitioner more time to file.
Petitioner’s proposed amendments thus qualify as timely only
if, under Fed. R. Civ. P. 15(c), they “relate back” to the original
Petition by asserting “a claim or defense that arose out of the
conduct, transaction, or occurrence set out--or attempted to be set
out--in the original pleading.”

Fed. R. Civ. P. 15(c)(1)(B); see

also Mayle v. Felix, 545 U.S. 644, 655 (2005).

In the context of

a habeas petition, “conduct, transaction, or occurrence” does not
mean a petitioner’s entire trial or sentencing. Mayle, 545 U.S. at
664.

Instead, the new claims must arise from occurrences of the

same “‘time and type’” as the original claims.

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Pittman, 209 F.3d

at 318 (quoting United States v. Craycraft, 167 F.3d 451, 457 (8th
Cir. 1999).
Petitioner’s proposed new claims are just that, entirely new.
They are quite different in “time and type” from his original
claims.

Four of the five original claims were based on alleged

problems with Petitioner’s indictment.

The other claim alleged a

defect at sentencing. His new claims, on the other hand, stem from
alleged evidentiary errors, ineffective assistance of counsel,
and/or prosecutorial misconduct at trial.

In no way do they

“relate back” to the original claims. Therefore, they are untimely
and it is futile for Petitioner to put them forth at this time.
His motion to amend his Petition by adding new claims should be
denied for that reason.
There is one final matter to address.

Prior to filing his

Motion to Amend, Petitioner also sought more time to object to the
original Recommendation.

That motion will be granted.

Following

the entry of the current Recommendation, Petitioner will have the
standard time to object not only to the current Recommendation, but
also the original Recommendation.
IT IS THEREFORE RECOMMENDED that Petitioner’s “Motion to Leave
to

File

an

Amended

Complaint,

and

Reincorporate

into

Record

Petitioner’s § 2254 Claim Ground Five ‘Amendment No #1’” (Docket
Entry 11) be denied as futile except to the extent that it points
the Court to the fifth claim for relief raised in the original
Petition.

As to that claim, it should be considered as properly

raised, but then be denied on its merits. The Habeas Petition,
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including that fifth claim for relief (Docket Entry 1), should be
denied and Judgment should be entered dismissing this action.
IT IS ORDERED that Petitioner’s “Motion for Enlargement of
time L.R. 6.1(a), et seq.”

(Docket Entry 10) is granted and that,

within 14 days of the mailing of this Recommendation to Petitioner,
he

may

file

objections

under

Fed

R.

Civ.

P.

72(b)

Recommendations that have been entered in his case.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 11, 2012

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to

both