GRAY v. LEWIS
Filing
11
MEMORANDUM OPINION, ORDER and RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that Petitioner's motion seeking appointment of counsel (Docket Entry 4 ) is DENIED. IT IS RECOMMENDED that Respondents Motion to Dismiss (Docket Entry 5 ) be GRANTED, that the Habeas Petition (Docket Entry 2 ) be DENIED, and that Judgment be entered dismissing this action. Signed by MAG/JUDGE L. PATRICK AULD on 9/9/2011. (Lapira, Sharon)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CURTIS LEE GRAY,
Petitioner,
v.
ROBERT C. LEWIS,
Respondent.
)
)
)
)
)
)
)
)
)
1:11CV91
MEMORANDUM OPINION, ORDER, 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. (Docket Entry
2.)
On October 26, 2009, in the Superior Court of Rockingham
County, Petitioner pled guilty to having attained habitual felon
status and to habitual driving while impaired in cases 08 CRS 53675
and 08 CRS 4256 and received a consolidated sentence of 80 to 105
months of imprisonment.
(Id., §§ 1-5.)
Petitioner did not appeal his conviction and sentence.
(Id.,
However, on July 12, 2010,1 Petitioner did file a motion for
§ 7.)
appropriate relief in Rockingham County, which the state court
denied on July 21, 2010.
(Id., § 11(a).)
Petitioner then
petitioned for certiorari with the North Carolina Court of Appeals,
which denied his request on September 1, 2010.
(Id., § 11(b).)
Petitioner next sought certiorari with the North Carolina Supreme
Court (on September 13, 2010), which dismissed his petition on
1
Respondent cited July 8, 2010, as the filing date. (Docket Entry 6 at
1.) That date reflects the date Petitioner placed on the signature page for his
motion. (Docket Entry 2-1 at 35.) The order denying the motion states that it
was filed on July 12, 2010. (Docket Entry 2-1 at 16.) The difference in the two
dates does not affect the outcome of the case.
November 4, 2010.
(Id., § 11(c).)
Finally, on January 26, 2011,
Petitioner signed and dated his instant Petition as being given to
prison authorities for mailing. (Docket Entry 2 at 28.) The Court
received the Petition on February 7, 2011.
(See id. at 1.)
Respondent has now filed a Motion to Dismiss (Docket Entry 5),
while Petitioner has moved for appointment of counsel (Docket Entry
4).
Because, as discussed below, Respondent’s Motion to Dismiss
should be granted, the motion seeking appointment of counsel will
be denied.
Claims
The Petition raises the following seven claims for relief:
1)
His guilty plea was invalid because he stated that he did
not want to plead guilty, but the trial judge continued with the
guilty plea anyway (Docket Entry 2, § 12, Ground One);
2)
There was no probable cause for his arrest because he was
only “trying to crank the truck” which is “not a violation of any
law” (id., Ground Two);
3)
His right to be free from double jeopardy was violated
when a set of early charges was dropped, a Highway Patrol officer
got a warrant for habitual driving under the influence, Petitioner
was held until the later warrant was secured, and Petitioner was
then given a new bond and put back in jail (id., Ground Three);
4)
Petitioner did not receive a probable cause hearing
within fifteen days of the filing of the habitual driving under the
influence charge (id., Ground Four);
-2-
5)
A blood sample was illegally taken from Petitioner on the
day of his arrest (id., Additional Pages, Ground #5);
6)
Petitioner’s
bail
on
the
habitual
felon
charge
was
excessive (id., Additional Pages, Ground #6); and
7)
Petitioner received ineffective assistance of counsel
because his attorney did not appeal the denial of a motion to
suppress, did not tell Petitioner that he could appeal that
decision, did not move for a “fast and speedy trial,” did not “get
[a] probable cause hearing within the 15 working days” required by
state law, did not interview defense witnesses, incorrectly advised
Petitioner to plead guilty, was inexperienced at jury trials, and
did not let Petitioner see a motion for discovery and/or the
discovery information itself (id., Additional Pages, Ground #7).
Discussion
Respondent requests dismissal on the ground that the Petition
was filed2 beyond the one-year limitation period imposed by 28
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). Because the difference between the date Petitioner signed his Petition
(i.e., the earliest date he could have given it to prison officials for mailing)
(continued...)
-3-
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.
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).
2
The Court thus must ascertain
(...continued)
and the date the Clerk received it would not affect disposition of the timeliness
issue, the Court declines to consider this matter further.
-4-
when direct review (or the time for seeking direct review) of
Petitioner’s underlying conviction(s) ended.
In the present case, the trial court entered judgment against
Petitioner
on
October
26,
2009.
(Docket
Entry
2,
§§
1-5.)
Respondent has argued that his conviction became final on that day
due to the fact that he pled guilty and did not appeal.
Entry 6 at 3.)
(Docket
Under that scenario, Petitioner’s time to file in
this Court began to run immediately and continued to run for 259
days until Petitioner filed his motion for appropriate relief on
July 12, 2010.
(See Docket Entry 2, § 11(a).)
Further, even if
the time for Petitioner to file an appeal were counted in his
favor,
it
would
have
expired
only
conviction under North Carolina law.
fourteen
days
after
See N.C.R. App. P. 4(a).
his
As
shown below, this additional fourteen days would not affect the
timeliness of the Petition.
Once Petitioner filed his motion for appropriate relief, the
one-year limitation period was then 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).”
Cir. 1999).
Taylor v. Lee, 186 F.3d 557, 561 (4th
In this case, that meant that the one-year period did
not begin to run again until the North Carolina Court of Appeals
denied Petitioner’s petition for certiorari on September 1, 2010.
(See Docket Entry 2, § 11(b).)
Petitioner did later attempt to
file a certiorari petition with the North Carolina Supreme Court.
-5-
(See id., § 11(c).)
However, that filing did not toll § 2244(d)’s
limitation period.
See generally Smith v. Woodard, 57 Fed. Appx.
167, 167 n.* (4th Cir. 2003) (holding that “pursuit of collateral
review in the North Carolina Supreme Court was improperly filed,
and did not toll [Petitioner's § 2254] filing period”) (citing
Artuz v. Bennett, 531 U.S. 4, 8 (2000))); accord Mitchell v.
McDade, 11 Fed. Appx. 351, 352 n.* (4th Cir. 2001); Wilkerson v.
Beck, No. 1:07CV802, 2008 WL 2513758 (M.D.N.C. June 20, 2008)
(unpublished) (recommendation of Sharp, M.J., adopted by Osteen,
Jr., J.), appeal dismissed, 293 Fed. Appx. 208 (4th Cir. 2008),
cert. denied, 129 S. Ct. 938 (2009); Williamson v. Jackson, No.
2:07CV9-1-MU,
2007
WL
2669709
(W.D.N.C.
Sept.
6,
2007)
(unpublished), appeal dismissed, 266 Fed. Appx. 304 (4th Cir.
2008).
Therefore, Petitioner’s time to file began to run again on
September 1, 2010, and expired 106 days later on December 16, 2010.
He did not sign and date his Petition as having been mailed until
January 26, 2011, about 40 days later.
The Petition was obviously
out of time under § 2244(d)(1).
In response to Respondent’s argument for dismissal of his
Petition, Petitioner makes arguments which appear to relate to the
doctrine of equitable tolling.
(See Docket Entry 8.)
The Supreme
Court has determined that the one-year limitation period for
federal habeas filings is subject to equitable tolling. Holland v.
Florida, 130 S.Ct. 2549, 2562 (2010).
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
-6-
his way’ and prevented timely filing.”
Id. (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)).
Here, Petitioner has emphasized first that he is a layman of
the law.
(Docket Entry 8 at 1.)
However, unfamiliarity with the
legal process and lack of representation do not constitute grounds
for equitable tolling, because they represent ordinary, rather than
extraordinary, circumstances for a prisoner.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004).
United States v.
Petitioner also has
implied that his time to file should be tolled because there are no
law libraries in the North Carolina prison system and North
Carolina Prisoner Legal Services, which represents prisoners in
lieu of them having law libraries, delayed before deciding to take
his case.
(See Docket Entry 8 at 1-3.)
However, this Court and
others have previously held that such complaints do not warrant
equitable tolling.
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).
Petitioner has asserted as well that mail is not delivered to
the prisons on Saturday and that North Carolina prisons do not make
copies
(such
copying).
that
Petitioner
Again,
these
had
to
mail
considerations
materials
reflect
out
for
ordinary
circumstances faced by all prisoners in North Carolina, rather than
extraordinary circumstances that would justify equitable tolling.
Numerous other prisoners regularly submit timely petitions despite
-7-
these conditions.
Petitioner has failed to explain how, with due
diligence, he could not have overcome these obstacles and filed a
timely petition. In the end, none of the arguments that Petitioner
has made entitle him to equitable tolling.
His Petition is
untimely and should be dismissed.
IT IS THEREFORE ORDERED that Petitioner’s motion seeking
appointment of counsel (Docket Entry 4) is DENIED.
IT IS RECOMMENDED that Respondent’s Motion to Dismiss (Docket
Entry 5) be GRANTED, that the Habeas Petition (Docket Entry 2) be
DENIED, and that Judgment be entered dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 9, 2011
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?