CHAPMAN v. HERRON
Filing
25
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTATE JUDGE L. PATRICK AULD signed on 6/5/2013, recommending that Respondent's Motion to Dismiss (Docket Entry 9 ) be GRANTED, that Respondent's Motion for Summary Judgment (Docket Entry 18 ) be DENIED as moot, that the Petition (Docket Entry 1 ) be DISMISSED, and that this action be DISMISSED. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LEWIS JERMAINE CHAPMAN,
Petitioner,
v.
JOEL HERRON,
Respondent.
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1:11CV194
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 September 19, 2007, in the Superior Court of Guilford
County, a jury found Petitioner guilty of three counts of robbery
with a dangerous weapon in cases 06 CRS 89165, 89166 and 89168.
(Docket Entry 10, Ex. 3 at 32-34; see also Docket Entry 1, ¶¶ 1, 2,
4-6.)1
The trial court sentenced Petitioner to three consecutive
sentences of 105 to 135 months of imprisonment.
(Docket Entry 10,
Ex. 3 at 45-50; see also Docket Entry 1, ¶ 3.)2
Petitioner
appealed his convictions to the North Carolina Court of Appeals
(Docket Entry 10, Exs. 1, 3-5; see also Docket Entry 1, ¶¶ 8,
9(a)), which court denied his appeal, State v. Chapman, No. COA08488, 2008 N.C. App. LEXIS 1992 (Nov. 4, 2008) (unpublished).
Petitioner then filed a petition for discretionary review with the
1
For attachments to Respondent’s memorandum in support of his motion to
dismiss lacking internal pagination, pin citations refer to the page number in
the footer appended to said document by the CM/ECF system.
2
The Judgment and Commitment Forms reflect the date September 20, 2007.
(Docket Entry 10, Ex. 3 at 45-50.)
North Carolina Supreme Court (Docket Entry 1, ¶ 9(g)), which that
court dismissed on February 5, 2009 (Docket Entry 10, Ex. 2; see
also
Docket
Entry
1,
¶
9(g)(3),
(4)).
Petitioner
did
not
thereafter file a petition for certiorari in the United States
Supreme Court.
(Docket Entry 1, ¶ 9(h).)
Petitioner alleges that he filed a pro se “habeas corpus”
petition with the state trial court on June 10, 2009 (Docket Entry
1, ¶ 11(a)(1)-(6)),3 and that the trial court denied his petition
on July 24, 2009 (id., ¶ 11(a)(7), (8)).
Petitioner thereafter
submitted a motion for appropriate relief (“MAR”) to the state
trial court (Docket Entry 10, Ex. 6),4 which the trial court
accepted as filed on December 23, 2009 (Docket Entry 10, Ex. 7 at
2 (indicating date filed).
Petitioner filed an amended MAR with
the trial court on January 25, 2010.
(indicating date filed.)5
(See Docket Entry 10, Ex. 7
The trial court denied the MAR by order
dated March 22, 2010, and filed March 23, 2010.
Docket Entry 1, ¶ 11(b)(7), (8).)
(Id.; see also
Petitioner then filed a pro se
certiorari petition with the North Carolina Court of Appeals
(Docket Entry 10, Ex. 8; see also Docket Entry 1, ¶ 11(c)), which
he dated as submitted on June 22, 2010 (Docket Entry 10, Ex. 8 at
3
Neither Petitioner nor Respondent have provided the Court with a copy of
this filing, although Petitioner has submitted an Affidavit averring that he did
in fact file the document with the state trial court and that the trial court
denied any relief. (Docket Entry 14-2 at 40.)
4
The copy of Petitioner’s MAR provided to the Court does not reflect the
date(s) on which it was signed or submitted to prison authorities for filing, but
the Petition identifies the filing date as December 23, 2009. (Docket Entry 1,
¶ 11(b)(3).)
5
The record before the Court does not appear to contain a copy of this
amended MAR.
-2-
8, 9), and which that court received as filed on June 28, 2010 (id.
at 2; see also Docket Entry 1, ¶ 11(c)(3)).6
denied that petition on July 7, 2010.
The Court of Appeals
(Docket Entry 10, Ex. 10;
see also Docket Entry 1, ¶ 11(c)(7), (8).)
Petitioner thereafter submitted his Petition in this Court
(Docket Entry 1), which he dated as mailed on March 7, 2011 (id. at
14),7 and which the Court received as filed on March 10, 2011 (id.
at 1).
Respondent moved to dismiss the Petition on statute of
limitation grounds.
(Docket Entry 4.)
Petitioner filed various
materials in response (see Docket Entries 12-14), which the Clerk
of Court construed as a response in opposition to Respondent’s
instant Motion to Dismiss.8
Petitioner’s Claims
Petitioner raises five claims for relief in his Petition: (1)
the trial court improperly joined all three charges for a single
trial; (2) trial counsel provided ineffective assistance by failing
6
The Petition identifies no other appellate-level collateral filings.
(See Docket Entry 1, ¶¶ 11, 12.)
7
For portions of the Petition lacking paragraph numbers, pin citations
refer to the page number in the footer appended to said document by the CM/ECF
system.
8
On July 13, 2011, Petitioner filed a document entitled “Motion for an
Order (Injunctive) Compelling Respond[e]nt’s Reply” (Docket Entry 15),
requesting the Court to compel Respondent to file a response to Petitioner’s
“Mot[io]n Objecting to Respond[e]nt[’]s Mot[io]n Denying Petitioner’s Habeas
Corpus” (Docket Entry 12) and brief in support (Docket Entry 13). Prior to the
Court’s ruling on Docket Entry 15 (the Court denied the motion on August 2, 2012,
see Docket Entry 24), Respondent filed on July 26, 2011, an Answer to the
Petition (Docket Entry 17), a Motion for Summary Judgment addressing the merits
of Petitioner’s claims (Docket Entry 18), and a brief in support (Docket Entry
19). In light of the conclusion that the Court should grant Respondent’s instant
Motion to Dismiss, the Court need not reach Respondent’s arguments on the merits
of Petitioner’s claims.
-3-
to move to sever the charges; (3) because of improper joinder of
the
charges,
prejudicially
witness
affected
identification
the
jury’s
pertaining
to
consideration
one
of
charge
the
two
remaining charges; (4) the trial court erred by permitting the jury
to review certain evidence during deliberations; and (5) double
jeopardy
attached
to
his
convictions
and
sentences
separate charges arising out of a common scheme or plan.
on
three
(Docket
Entry 1 at 5, 6-7, 8, 10, 18-26.)
Discussion
Respondent moves for dismissal of the Petition on the grounds
that the Petition was filed9 outside of the one-year limitation
period.
28 U.S.C. § 2244(d)(1).10
In order to assess Respondent’s
9
“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 F. App’x 167, 167 n.* (4th
Cir. 2003) (implying that Houston’s rule governed filing date of § 2254
petition); Ostrander v. Angelone, 43 F. App’x 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) and the
date the Clerk received it would not affect disposition of the timeliness issue,
the Court need not consider this matter further.
10
Contrary to Petitioner’s assertion that the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”) (which adopted the relevant limitations provision)
applies only to death penalty cases, AEDPA applies to all § 2254 petitions filed
after April 24, 1996. Brown v. Angelone, 150 F.3d 370, 372 (4th Cir. 1998)
(citing Lindh v. Murphy, 521 U.S. 320, 336-37 (1997)); Moore v. Beck, No.
1:06CV997, 2007 WL 2226010, at *1 (M.D.N.C. Aug. 1, 2001) (unpublished) (citing
Lindh).
-4-
statute of limitation 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).
The Court thus must ascertain
when direct review (or the time for seeking direct review) of
Petitioner’s underlying conviction ended.
-5-
Here, the trial court entered judgment against Petitioner on
September 20, 2007 (see Docket Entry 10, Ex. 3 at 45-50), the Court
of Appeals denied his appeal on November 4, 2008 (see id., Ex. 1),
and the North Carolina Supreme Court denied his petition for
discretionary
review
on
February
5,
2009
(see
id.,
Ex.
2).
Petitioner did not file a certiorari petition with the United
States Supreme Court. (Docket Entry 1, ¶ 9(h).)
As Respondent has
asserted (Docket Entry 10 at 2-3), and Petitioner has not disputed
(Docket Entry 12 at 1-5; Docket Entry 13 at 6-11), Petitioner’s
convictions thus became final on May 6, 2009, 90 days after the
February 5, 2009 decision of the North Carolina Supreme Court
denying the petition for discretionary review.
See Clay v. United
States, 537 U.S. 522, 527 (2003) (holding that “[f]inality attaches
when this Court affirms a conviction on the merits on direct review
or denies a petition for a writ of certiorari, or when the time for
filing
a
certiorari
petition
expires.”
(internal
citations
omitted)); see also Sup. Ct. R. 13.1 (allowing petitioners 90 days
after highest state appellate court’s denial to file for writ of
certiorari).
The limitations period then ran for 35 days until Petitioner
filed his habeas corpus petition with the state trial court on June
24, 2009.11
As Petitioner did not appeal the state trial court’s
11
This approach gives Petitioner the benefit of the doubt in tolling the
limitations period during the pendency of this state habeas petition based on an
assumption that he did make such a filing and that it constituted “a properly
filed application for State post-conviction or other collateral review with
respect to” his September 20, 2007 judgments within the meaning of 28 U.S.C.
§ 2244(d)(2).
-6-
denial of that collateral filing, the statute of limitations began
to run again, at the latest, 30 days after state trial court denied
the petition.
See McConnell v. Beck, 427 F. Supp. 2d 578, 582-83
(M.D.N.C. 2006) (ruling that North Carolina law did not explicitly
address time to seek review of denial of MAR, but that such time
would not extend more than 30 days absent unusual circumstances);
see also Leonard v. White, No. 1:10CV443, 2011 WL 1103793, at *2
(M.D.N.C. Mar. 23, 2011) (unpublished) (following McConnell and
citing Rhue v. Carroll, No. 5:05-HC-592-BO (E.D.N.C. Aug. 28, 2006)
(unpublished), appeal dismissed, 229 F. App’x 214 (2007), for more
restrictive
position
that
limitation
period
begins
to
run
immediately upon denial of MAR in absence of certiorari petition).
The limitations period then ran for 122 days until Petitioner
filed his MAR in the state trial court and remained tolled until
the North Carolina Court of Appeals denied Petitioner’s certiorari
petition on July 7, 2010.
See Taylor v. Lee, 186 F.3d 557, 561
(4th Cir. 1999) (state collateral filings generally toll the
federal habeas deadline for “the entire period of state postconviction 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)”).12
12
Notably, the limitations period did not then toll for the 35 days
permitted in direct appeals to file a petition for discretionary review with the
North Carolina Supreme Court. See N.C. R. App. P. 32(b) (unless court orders
otherwise mandate issues 20 days after written opinion filed); N.C. R. App. P.
14(a) & 15(b) (allowing 15 days after issuance of mandate to file notice of
appeal or petition for discretionary review).
North Carolina law does not
(continued...)
-7-
From that point, the limitations period ran for 208 days until
it expired on January 31, 2011, without Petitioner having filed any
post-conviction
petitions
in
this
petitions in the state courts.
Court
or
any
further
such
Petitioner’s instant Petition,
submitted to prison authorities on March 7, 2011, was thus 35 days
late.
Petitioner does not dispute the foregoing time-line, but his
Petition does advance several reasons why he believes the Court
should consider the Petition despite its untimeliness.
Entry 12 at 1-5; Docket Entry 13 at 6-11.)
(Docket
In other words, the
Petition requests equitable tolling, which doctrine the Supreme
Court has ruled applicable in this context, Holland v. Florida, 560
U.S. ___, ____, 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 his way’ and prevented timely filing.”
Id. (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (emphasis added).
12
(...continued)
provide for discretionary review petitions to the North Carolina Supreme Court
in noncapital, post-conviction matters. See N.C. R. App. P. 21(e) (providing
that certiorari petitions seeking review of court rulings on non-capital MARs
“shall be filed with the Court of Appeals and the Supreme Court will not
entertain petitions for certiorari or petitions for further discretionary review
in these cases”); see also N.C. Gen. Stat. § 15A–1422(f) (declaring that
“[d]ecisions of the Court of Appeals on motions for appropriate relief . . . are
final and not subject to further review by appeal, certification, writ, motion,
or otherwise”). Only “a properly filed application for State post-conviction or
other collateral review” tolls the limitations period. 28 U.S.C. § 2244(d)(2).
Furthermore, the fact that the North Carolina Supreme Court sometimes, in its
discretion, suspends or creates exceptions to its procedural rules does not mean
that a petition for discretionary review of a non-capital MAR should serve to
toll the limitations period. See Rouse v. Lee, 339 F.3d 238, 245 (4th Cir. 2003)
(en banc).
-8-
Petitioner first argues that equitable tolling should apply
during the 187-day period between May 6, 2009, the date his
convictions became final, and December 23, 2009, the date he filed
his MAR.
(Docket Entry 13 at 7.)
Petitioner appears to contend
that equitable tolling applies during this period because he did
not know that the habeas petition he filed on June 10, 2009, in the
state trial court was defective. (Id.) This argument lacks merit.
At the outset, the Court notes that it has given Petitioner
the benefit of the doubt and has already tolled the limitations
period during the pendency of his state habeas petition, i.e., from
June
10,
2009,
to
July
24,
2009,
plus
an
additional
30-day
appellate grace period, even though Petitioner did not appeal the
trial court’s denial of that petition.
Petitioner should have
acted quickly to file a MAR after the trial court’s July 24, 2009
order denying the habeas petition.
Instead, he waited nearly five
months to file a MAR on December 23, 2009.
Moreover, Petitioner is
not entitled to equitable tolling of the periods between May 6,
2009, and June 10, 2009, and between July 24, 2009, and December
23, 2009, because unfamiliarity with the legal process, even in the
case of an unrepresented prisoner, does not constitute grounds for
equitable tolling.
See United States v. Sosa, 364 F.3d 507, 512
(4th Cir. 2004); March v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2001); Turner v, Johnson, 177 F.3d 390, 392 (5th Cir. 1999); Gray
v. Lewis, No. 1:11CV91, 2011 WL 4022787, at *3 (M.D.N.C. Sept. 9,
2011) (unpublished) (citing Hood v. Jackson, No. 5:10-HC2008-FL,
2010 WL 4974550, at *2 (E.D.N.C. Dec. 1, 2010) (unpublished), and
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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)), adopted, slip op. (M.D.N.C. Nov. 4, 2011) (Beaty,
C.J.)).13
Finally, Petitioner contends that the Court should excuse his
late filing because he suffered a denial of his right of access to
the courts due to the State’s failure “to provide legal materials
to litigate [his] case” or to appoint him counsel, citing Bounds v.
Smith, 430 U.S. 817, 828 (1977), overruled on other grounds by
Lewis v. Casey, 518 U.S. 343, 354 (1996).
11.) This argument lacks merit.
(Docket Entry 13 at 7,
Under Bounds, 430 U.S. at 821-28,
the State has an obligation to provide either prison law libraries
or assistance from persons trained in the law.
Because inmates in
this State have access to North Carolina Prisoner Legal Services,
Inc., the State has no legal obligation to either appoint counsel
or to provide law libraries for its inmates.
See Burgess v.
Herron, No. 1:11CV420, 2011 WL 5289769, at *2 (M.D.N.C. Nov. 2,
2011) (unpublished).
In sum, the Petition is untimely.
IT
IS
THEREFORE
RECOMMENDED
that
Respondent’s
Motion
to
Dismiss (Docket Entry 9) be GRANTED, that Respondent’s Motion for
Summary Judgment (Docket Entry 18) be DENIED as moot, that the
13
To the extent Petitioner argues that his indigency (Docket Entry 13 at
8), and status as a “layman at law” (id. at 7), warrant equitable tolling, these
arguments fail for the same reason.
-10-
Petition (Docket Entry 1) be DISMISSED, and that this action be
DISMISSED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 5, 2013
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