BARBEE v. KELLER
Filing
11
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/09/2012, that Respondent's Motion to Dismiss (Docket Entry 5 ) be granted, that the Habeas Petition (Docket Entry 2 ) be dismissed, and that Judgment be entered dismissing this action.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DARRELL WADE BARBEE,
Petitioner,
v.
ALVIN W. KELLER, JR.,
Respondent.
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1:11CV238
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 2.)
(Docket
On August 21, 2006, Petitioner was convicted after a
jury trial in the Superior Court of Stanly County of thirty-one
counts of statutory rape, fourteen counts of indecent liberties,
and three counts of statutory sex offense in cases 06 CRS 2566-83
and 05 CRS 51055-64.
(Id. §§ 1, 2, 5, 6.)
He received three
consecutive sentences of 240 to 297 months of imprisonment plus a
consecutive term of 16 to 20 months of imprisonment.
(Id. § 3.)
Petitioner filed a direct appeal, but the North Carolina Court of
Appeals found no error.
State v. Barbee, No. COA07-12, 2007 WL
4233640 (N.C. App. Dec. 4, 2007) (unpublished).
no further direct appeals.
Petitioner filed
(Docket Entry 2, § 9.)
According to his filings in state court, on July 22, 2009,
Petitioner mailed a motion for appropriate relief to the Stanly
County Superior Court.
(Docket Entry 8, Ex. 8 at 3.)1
After its
denial (id., Ex. 7), Petitioner sought a writ of certiorari from
the North Carolina Supreme Court (id., Ex. 8).
Upon dismissal of
his certiorari petition (id., Ex. 9), Petitioner filed an undated,
hand-written habeas petition in the United States District Court
for the Western District of North Carolina, received by that court
on March 10, 2011, in an envelope bearing a mailing date of March
9, 2011. (Case No. 1:11CV203, Docket Entry 1.) After the transfer
of that case to this Court, Petitioner was permitted to file a
proper petition on the correct forms.
(Id., Docket Entry 6.)
(Docket Entry 2.)2
then filed the instant Petition.
Respondent
moved for dismissal of the Petition as untimely filed.
Entry 5.)
Petitioner responded.
He
(Docket
(Docket Entry 10.)
Discussion
Respondent requests dismissal on the ground that the Petition
was filed beyond the one-year limitation 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:
1
This page citation refers to the page number placed on the document by
Petitioner rather than the page number in the CM/ECF footer. In his instant
Petition, Petitioner gave January 5, 2010, as the date of filing of his motion
for appropriate relief. (Docket Entry 2, § 11.)
2
This and all further citations to the record refer to this case.
-2-
(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.
Petitioner has raised five claims for relief, all of which either
call witnesses’ testimony into question in light of other evidence
in the record or challenge the sufficiency of the evidence against
him.
(See Docket Entry 2, § 12.)
The facts and law underlying
these claims existed and could reasonably have been known to
Petitioner at the time of his trial.
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.
-3-
Here, Petitioner did file a direct appeal, which the North
Carolina Court of Appeals denied on December 4, 2007. His direct
appeal then became final 35 days later on January 8, 2008, when the
time for filing a petition for discretionary review with the North
Carolina Supreme Court expired. See Harb v. Keller, No. 1:09CV766,
2010 WL 3853199, at *2-5 (M.D.N.C. Sept. 28, 2010) (unpublished);
Headen v. Beck, 367 F. Supp. 2d 929, 931-32 (M.D.N.C. 2005).
Petitioner’s year to file in this Court began to run on that date
and expired a year later on January 8, 2009.
Petitioner did later file and pursue a motion for appropriate
relief in the state courts. The one-year federal habeas limitation
period is 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).”
1999).
Taylor v. Lee, 186 F.3d 557, 561 (4th Cir.
Petitioner’s time to file in this Court, however, expired
before he made any state court filings.
Filings made after the
limitations period has ended do not revive or restart it.
v. Beck, 230 F.3d 663, 665 (4th Cir. 2000).
Minter
Therefore, the
Petition is untimely under § 2244(d)(1)(A).
In his response to the instant Motion to Dismiss, Petitioner
does not directly contest the calculations just set out.
Docket Entry 10.)
(See
However, he does state that Respondent violated
this Court’s order requiring an answer to the instant Petition
because Respondent filed the Motion to Dismiss rather than an
-4-
(Id. at 2.)3
answer.
Respondent actually did file a limited
answer based on its statute of limitations defense (Docket Entry
4), along with its instant Motion to Dismiss (Docket Entry 5), and
the applicable rules permit such action, see Chapman v. Herron, No.
1:11CV194,
2012
WL
3151007,
at
*2
(M.D.N.C.
Aug
2,
2012)
(unpublished).
Petitioner also argues that the Court should not dismiss his
case “due to the circumstances lack of communication with the
appellate attorney about the one year statue of limitation in order
to seek petition for federal habeas corpus proceeding and the
circumstances if not filed.”
(Docket Entry 10 at 2-3.)
This
argument appears to represent a request for equitable tolling,
which doctrine the Supreme Court generally has ruled applicable in
this context.
(2010).
See Holland v. Florida, 130 S. Ct. 2549, 2562
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.”
(2005)).
Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
Unfamiliarity
with
the
legal
process
and
lack
of
representation do not constitute grounds for equitable tolling.
United
States
v.
Sosa,
364
F.3d
507,
512
(4th
Cir.
2004).
Likewise, “garden variety” negligence by counsel does not serve as
a ground for equitable tolling.
3
Holland, 130 S. Ct. at 2564.
Page citations to this document refer to page numbers in the CM/ECF
footer.
-5-
In
light
of
such
authority,
Petitioner’s
unsupported,
conclusory statements regarding “lack of communication” do not
provide a basis for equitable tolling.
Accordingly, the Petition
was not timely filed and Respondent’s Motion to Dismiss should be
granted.
IT
IS
THEREFORE
RECOMMENDED
that
Respondent’s
Motion
to
Dismiss (Docket Entry 5) be granted, that the Habeas Petition
(Docket Entry 2) be dismissed, and that Judgment be entered
dismissing this action.
______________________________
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 5, 2012
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