RIOS v. LEWIS
Filing
14
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 10/4/12, that Petitioner's Motion to Compel the Respondent to Answer the Order Given by the Court June 1st, 2011 (Docket Entry 9 ) and Petitioner's Motion to Obtain an Ev identiary Hearing under Rule 8 Governing 2254 Cases (Docket Entry 12 ) are denied, Respondent's Motion to Dismiss (Docket Entry 5 ) is granted, the Habeas Petition (Docket Entry 1 ) is dismissed, and Judgment is entered dismissing this action. (Law, Trina)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MANUEL G. RIOS,
Petitioner,
v.
ROBERT LEWIS,
Respondent.
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1:11CV405
MEMORANDUM OPINION AND ORDER
Auld, 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 March 16, 2006, in the Superior Court of Guilford
County, Petitioner pled guilty to trafficking more than 400 grams
of cocaine by possession and conspiracy to traffic more than 400
grams of cocaine in cases 05 CRS 90722 and -23.
(Id. §§ 1, 2, 4-6;
Docket Entry 6, Ex. 2.) He received a consolidated sentence of 175
to 219 months of imprisonment.
6, Ex. 2.)
(Docket Entry 1, § 3; Docket Entry
North Carolina mandates that specific sentence for
trafficking 400 grams or more of cocaine.
N.C. Gen. Stat. § 90-
95(h)(3)(c).
Petitioner gave notice of appeal, but the Appellate Defender,
after reviewing the case, filed a motion to dismiss the appeal
based on the fact that Petitioner had no right to an appeal.
(Docket Entry 6, Ex. 3.)
The motion was allowed and the appeal was
dismissed on October 31, 2006.
(Id.)
On September 28, 2007,
Petitioner filed a petition for certiorari with the North Carolina
Court of Appeals seeking reinstatement of the appeal or leave to
withdraw his guilty plea.
(Id., Ex. 4.)
Petitioner’s pursuit of
his direct appeal ended with the denial of that petition.
(Id.,
Ex. 6.)
Petitioner thereafter sought collateral relief in the state
courts by filing, through counsel, a motion for appropriate relief
on June 20, 2008.
(Id., Ex. 7.)
When it was denied, he filed for
a writ of certiorari from the North Carolina Court of Appeals,
which
that
court
denied
on
July
17,
2009.
(Id.,
Ex.
11.)
Petitioner then filed nothing more until February 9, 2011, when he
requested reconsideration of the order dismissing his appeal, which
was denied.
(Id., Ex. 12.)
Finally, Petitioner filed a petition
for certiorari seeking to challenge that denial.
(Id., Ex. 13.)
The North Carolina Court of Appeals denied that petition on May 11,
2011.
(Id., Ex. 15.)
Petitioner then signed and dated his instant Petition as being
mailed on May 15, 2011.
(Docket Entry 1 at 14.)1
received the instant Petition on May 19, 2011.
This Court
(Id. at 1.)
Respondent moved for the dismissal of the instant Petition on
statute
of
limitations
grounds.
(Docket
Entry
5.)
Petitioner
responded (Docket Entry 8) and filed a “Motion to Compel the
Respondent to Answer the Order Given by the Court June 1st, 2011,”
in which he seeks to compel Respondent to answer the merits of his
Petition (Docket Entry 9), as well as a “Motion to Obtain an
1
Page citations to this document refer to the page numbers in the CM/ECF
footer, not the document’s pre-printed internal pagination.
-2-
Evidentiary Hearing under Rule 8 Governing 2254 Cases” (Docket
Entry 12).
The parties have consented to proceed before a United
States Magistrate Judge.
(Docket Entry 13.)
Petitioner’s Claims
Petitioner claims that failure by the state to reveal the
identity of a confidential informant violated his rights, that the
Superior Court did not have jurisdiction to grant the dismissal of
his appeal, and that his trial attorney provided ineffective
assistance of counsel by failing to see that the trial court took
the Eighth Amendment of the United States Constitution into account
when sentencing Petitioner and by failing to preserve for appeal
the denial of pretrial motions.
(Docket Entry 1, § 12.)
Discussion
Respondent requests dismissal on the ground that the Petition
was filed2 beyond the one-year limitation period imposed by 28
U.S.C. § 2244(d)(1).
In order to assess this argument, the Court
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)
and the date the Clerk received it would not affect disposition of the timeliness
issue, the Court declines to consider this matter further.
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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(s) ended.
-4-
Here, Petitioner filed a notice of appeal, but then withdrew
it through counsel.
The request to dismiss the appeal was granted
on October 31, 2006.
At that point, his appeal was no longer
pending and his conviction became final. As a result, Petitioner’s
time to file a federal habeas action then began to run and ran
until at least September 28, 2007, when he filed the petition for
certiorari seeking to have his appeal reinstated.
The State
argues, and convincingly so, that the filing of that petition did
not toll the running of the statute of limitations because it
sought an “extraordinary writ” and therefore did not constitute
part of the regular appeal process.
(See Docket Entry 6 at 4.)
If
so, that filing could not toll the running of the limitations
period.
See Headen v. Beck, 367 F. Supp. 2d 929, 932 (M.D.N.C.
2005); Saguilar v. Harkleroad, 348 F. Supp. 2d 595, 598-601
(M.D.N.C. 2004), appeal dismissed, 145 Fed. Appx. 444 (4th Cir.
2005).
Accordingly, Petitioner’s time to file in this Court
expired on October 31, 2007, a year after the dismissal of his
appeal.
Further,
even
if
the
Court
concluded
that
Petitioner’s
request to reinstate his direct appeal tolled the running of the
statute of limitations, his instant Petition would remain untimely
because,
by
the
time
Petitioner
filed
the
petition
seeking
reinstatement of his appeal, he had just over a month left out of
his year to file in this Court.
The petition for reinstatement of
the appeal was denied on October 18, 2007.
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Petitioner’s time to
file in this Court would have begun to run again on that date and
would have expired in late November of 2007.
Petitioner did later seek collateral relief in the state
courts by filing an motion for appropriate relief and other motions
in the state courts.
However, he did not file the motion for
appropriate relief until June 20, 2008, more than a year and a half
after
already
expired.
Petitioner’s other state court filings came even later.
Attempts
at
his
time
collateral
to
file
relief
in
in
this
the
Court
state
had
courts
filed
after
the
limitations period has run do not revive or restart the filing
period.
Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000). In sum,
the Petition in this case was filed well out of time.
IT IS THEREFORE ORDERED that Petitioner’s Motion to Compel the
Respondent to Answer the Order Given by the Court June 1st, 2011
(Docket Entry 9) and Petitioner’s Motion to Obtain an Evidentiary
Hearing under Rule 8 Governing 2254 Cases (Docket Entry 12) are
denied, Respondent’s Motion to Dismiss (Docket Entry 5) is granted,
the Habeas Petition (Docket Entry 1) is dismissed, and Judgment is
entered dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
Date: October 4, 2012
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