SATTERFIELD v. HAYNES

Filing 12

MEMORANDUM OPINION AND RECOMMENDATION - MAGISTRATE JUDGE re 1 Petition for Writ of Habeas Corpus filed by BILLY GRAY SATTERFIELD be DENIED, 5 MOTION for Summary Judgment filed by WALLACE SHIELDS GRANTED, and that Judgment be entered dismissing this action signed by MAG/JUDGE L. PATRICK AULD on 9/9/11. (Wilson, JoAnne)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BILLY GRAY SATTERFIELD,
Petitioner,
v.
HAYNES, SUP’T.,
Respondent.

)
)
)
)
)
)
)
)
)

1:10CV836

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 May 14, 2008, in the Superior Court of Forsyth

County, Petitioner pled guilty to eight counts of trafficking opium
(OxyContin) and two counts of possession with intent to sell or
deliver opium (OxyContin) in cases 07 CRS 60987, -60993, and 08 CRS
8913-14.

(Docket Entry 6, Exs. 1, 3.)

Pursuant to the terms of

his plea bargain, all ten counts were consolidated into a single
judgment on one count of trafficking opium and Petitioner received
the mandatory minimum sentence of 70 to 84 months of imprisonment.
(Id.)

Petitioner did not file a direct appeal.

(Docket Entry 1 at

2.)
On the portion of his Petition regarding his state court
filings (other than any direct appeal), Petitioner identified March
31, 2009, and August 26, 2009, as dates of filings as to a Motion
for Appropriate Relief challenging his foregoing conviction and
sentence.

(Id.)

According to Petitioner’s Inmate Mail Report, on

March 31, 2009, Petitioner did send legal mail to the District

Attorney in Winston-Salem, North Carolina, and to the Resident
Superior Court Judge of Forsyth County. (Docket Entry 1 at 58-59.)
On July 9, 2009, he sent an inquiry to the Forsyth County Clerk’s
Office concerning the status of his motion for appropriate relief
and, on July 22, 2009, said office responded that its records
failed to reflect any such filing.

(Id. at 57.)

On August 26, 2009, Petitioner filed a motion for appropriate
relief dated March 26, 2009, in the Forsyth County Clerk’s Office,
which the court denied. (Docket Entry 6, Exs. 7, 8.)

Petitioner

then sought a writ of certiorari from the North Carolina Court of
Appeals, which denied that request on July 20, 2010.
11.)

(Id., Ex.

He also sought certiorari from the North Carolina Supreme

Court, but that petition was dismissed on October 7, 2010.

(Id.,

Ex. 13.)
Petitioner thereafter mailed his undated Petition to this
Court.

(See Docket Entry 1 at 14.)

The envelope reflects a

postmark of November 1, 2010, and the Court received the Petition
on November 2, 2010.

(See Docket Entry 1 at 1; Docket Entry 1-1.)

Respondent has now moved for summary judgment (Docket Entry 5),
Petitioner has filed a response (Docket Entry 9), and Respondent’s
motion comes before the Court for a decision.
Petitioner’s Claims
Petitioner has raised the following four claims for relief in
his Petition:
1)

He was subjected to double jeopardy at sentencing because

he was sentenced for “multiple counts arising out of a single
-2-

course of conduct” (Docket Entry 1, § 12, Ground One Supporting
Facts);
2)

Petitioner received ineffective assistance of counsel

because he “had a defense strategy of entrapment, [but] counsel
failed to investigate and . . . failed to enter a timely motion”
(id., Ground Two Supporting Facts);
3)

“The

trial

court

lacked

jurisdiction

to

accept

[Petitioner’s] plea” because the indictments were defective in that
they did not “list the dosage units of the drug sold” and did not
“list the amount of money alleged to have changed hands” (id.,
Ground Three and Supporting Facts); and
4)
did

The guilty plea was improper in that “[t]he trial judge

not

ensure

that

[Petitioner’s]

plea

was

voluntarily

or

intelligently entered and further failed to establish a sufficient
factual basis for the acceptance of [his] plea.” (Id., Ground Four
Supporting Facts.) The Petition adds that it also “does not appear
affirmatively in the record that [his] plea was voluntarily and
understandingly entered.”

(Id.)
Discussion

Although Respondent has alternatively briefed the claims in
the Petition on their merits, he first requests dismissal on the
ground that the Petition was filed1 beyond the one-year limitation

1
“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
(continued...)

-3-

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:
(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.

1

(...continued)
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). Petitioner did not date his Petition. (Docket Entry 1 at 14.) Nor, in
his response brief, did he identify the date he gave his Petition to prison
officials for mailing. (Docket Entry 9 at 1-6.) Accordingly, the earliest date
in the record the Court could use as the date of “filing” is the post-mark date
of November 1, 2010. (See Docket Entry 1-1.)

-4-

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, judgment was entered on May 14, 2008.
Ex. 3.)

(Docket Entry 6,

Because Petitioner pled guilty and received the only

sentence available under N.C. Gen. Stat. § 90-95(h)(4), he did not
have a right to a direct appeal under North Carolina law.
State v. Hamby, 129 N.C. App. 366, 499 S.E.2d 195 (1998).

See
As a

result, Petitioner’s time to file a habeas petition in this Court
began to run on the day judgment was entered.

Hairston v. Beck,

345 F. Supp. 2d 535, 537 (M.D.N.C. 2004); accord Redfear v. Smith,
No. 5:07CV73-03-MU, 2007 WL 3046345, at *2 (W.D.N.C. Oct. 17, 2007)
(unpublished); Marsh v. Beck, No. 1:06CV1108, 2007 WL 2793444, at
*2 (M.D.N.C. Sept. 26, 2007) (unpublished).2

It then ran for 365

2
The Petition states that the 90-day period for filing a petition for
certiorari with the United States Supreme Court should be added to the date of
judgment. (Docket Entry 1 at 13.) In order to seek review from the United
States Supreme Court, Petitioner would have had to take his case to the “state
court of last resort.” S.Ct. R. 13.1. In this instance, Petitioner would have
had to bring his case to the North Carolina appellate courts through a petition
for a writ of certiorari. N.C. Gen. Stat. § 15A-1444. In the absence of such
action, Petitioner had no right to seek review in the United States Supreme Court
and thus no basis to claim an entitlement to the addition of 90 days to the date
(continued...)

-5-

days until it expired a year later on May 14, 2009, without
Petitioner having successfully made any filing in any court.
Petitioner claims in Section 18 of his Petition that he filed
his motion for appropriate relief “on or about March 26th, 2009.”
(Docket Entry 1 at 13.)

This date appears on the motion for

appropriate relief the state court described as filed on August 26,
2009.

(Docket Entry 6, Exs. 7, 8.)

If Petitioner is correct, the

running of his time to file was tolled as of March 26, 2009, 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).”

Taylor v. Lee,

186 F.3d 557, 561 (4th Cir. 1999).
Petitioner, however, has not shown that he utilized the
correct method for filing pleadings in North Carolina. N.C.R. Civ.
P. 5(e)(1) (requiring filing of documents with clerk of court
unless judge accepts filing directly by noting filing date and
transmitting documents to clerk’s office).

To the contrary, the

record reflects that Petitioner mailed legal documents only to a
judge and the district attorney and lacks any evidence that a judge
accepted said documents for filing by transmitting them to the
clerk’s office after noting the filing date.

(Docket Entry 1 at

57-59.) Indeed, the documentation from the clerk’s office confirms
that no judge took any such action.

2

(...continued)
of entry of judgment.

-6-

(See id. at 57.)

As a result, no filing occurred until August 26, 2009, when
Petitioner sent his motion for appropriate relief to the clerk’s
office.

(See id. at 2; Docket Entry 6, Exs. 7, 8.)

Improper

attempted filings do not toll the limitation period.

Artuz v.

Bennett, 531 U.S. 4, 8 (2000) (describing “properly filed” document
as one submitted in accordance with state rules concerning form of
document, time limits, and proper court and office for filing). As
previously explained, August 26, 2009, fell after the time to file
in this Court had already expired. That filing could not revive or
restart the federal limitations period.
663, 665 (4th Cir. 2000).

Minter v. Beck, 230 F.3d

The Petition is untimely under §

2244(d)(1)(A).
Petitioner’s response brief does not clearly address the
timeliness of his Petition.

(See Docket Entry 9.)

Instead, it

states that Petitioner is a layman at law, that a prison case
worker and another inmate told him his sentence was too high for
his crimes, that North Carolina Prisoner Legal Services (NCPLS)
waited about seven months to inform him that it would not represent
him, and that he had difficulties doing his own legal work because
prison authorities declared a criminal law and procedure book sent
to him by his mother to be contraband.

(See id. at 1-2.)

The

brief then makes statements and arguments and asks questions
concerning the merits of his case.

(Id. at 3-6.)

None of the statements by Petitioner changes the conclusion
set out above that his Petition is untimely under § 2444(d)(1).
However, at least some of the arguments could be generously
-7-

construed as a request for equitable tolling by a pro se prisoner.
The United States Supreme Court has determined that the one-year
limitation period is subject to equitable tolling.
Florida, 130 S.Ct. 2549, 2562 (2010).

Holland v.

Equitable tolling may apply

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)).

Unfamiliarity with the

legal process and lack of representation do not constitute grounds
for equitable tolling.
(4th Cir. 2004).

United States v. Sosa, 364 F.3d 507, 512

Likewise, “garden variety” negligence by counsel

does not provide a basis for equitable tolling. Holland, 130 S.Ct.
at 2564.
Petitioner’s equitable tolling arguments about lack of legal
knowledge

and

extraordinary,

representation
circumstances

for

constitute
prisoners

provide grounds for equitable tolling.

ordinary,

and,

thus

fail

not
to

See Sosa, 364 F.3d at 512.

Petitioner’s claim that NCPLS was not diligent in informing him of
its

declination

of

equitable tolling.

representation

similarly

fails

to

warrant

Hood v. Jackson, No. 5:10-HC2008-FL, 2010 WL

4974550 (E.D.N.C. Dec. 1, 2010) (unpublished) (citing cases);
Dockery v. Beck, No. 1:02CV00070, 2002 WL 32813704, at *2 (M.D.N.C.
Aug. 1, 2002) (Beaty, J., adopting recommendation of Eliason, M.J.)
(unpublished).
Nor does Petitioner’s contention that prison authorities
confiscated a law book his mother attempted to send him support
-8-

equitable tolling.

Petitioner attached to his response brief

prison grievance forms addressing this issue.
at 12-14.)

(See Docket Entry 9

These forms show that prison officials did not treat

the book as contraband, but rather that a problem arose because the
book had a CD or DVD attached to it; the prison’s policy prohibited
Petitioner’s possession of the CD/DVD and did not allow mail room
staff to remove the CD/DVD from the book.

(See id.)

Prison

officials informed Petitioner of this circumstance and gave him a
chance to have the book sent home so that his mother could remove
the CD/DVD and return the book to him.

(See id.)

However,

Petitioner declined this option and refused to sign appropriate
forms.

(See id.)

Because Petitioner, not prison officials,

ultimately deprived himself of the book by refusing to follow
proper procedures, he is not entitled to equitable tolling.
The remainder of Petitioner’s response brief addresses the
merits of his case and thus does not support a finding of grounds
for equitable tolling.

Respondent’s Motion for Summary Judgment

should be granted based on Petitioner’s failure to comply with the
statute of limitations.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 5) be GRANTED, that the Habeas
Petition (Docket Entry 1) be DENIED, and that Judgment be entered
dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 9, 2011
-9-