PAGAN v. YOUNG

Filing 12

MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 3/11/2014, that Respondent's Motion for Summary Judgment (Docket Entry 6 ) be granted, that the Petition (Docket Entry 1 ) be denied, and this action be dismissed. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TRAVIS WADE PAGAN,
Petitioner,
v.
REUBEN YOUNG,
Respondent.

)
)
)
)
)
)
)
)
)

1:13CV9

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.

(Docket

Entry 1.) Petitioner pled guilty in the Superior Court of Cabarrus
County to conspiracy to commit first-degree rape, two counts of
conspiracy to commit first-degree sex offense, and attempted firstdegree sex offense in cases 09 CRS 51630 through 51632.
Entry 7, Ex. 1; see also Docket Entry 1, ¶¶ 1, 2, 4-6.)

(Docket
On March

25, 2011, the trial court consolidated the four convictions into
two and sentenced Petitioner to consecutive terms of 150 to 189
months of imprisonment.
Entry 1, ¶ 3.)

(Docket Entry 7, Ex. 2; see also Docket

Petitioner did not file a direct appeal.

(See

Docket Entry 1, ¶ 9.)1
Petitioner did file a pro se motion for appropriate relief
(“MAR”) and request for an evidentiary hearing with the state trial
court, which he dated as signed on January 16, 2012 (Docket Entry

1

Although Petitioner did not check the box for “No” as to whether he
appealed his convictions (see Docket Entry 1, ¶ 8), his ensuing responses make
clear that he did not file a direct appeal, but instead pursued collateral relief
(see id., ¶¶ 9-11).

7, Ex. 3 at 10; see also Docket Entry 1, ¶ 11(a)),2 and which the
trial court accepted as filed on January 24, 2012 (Docket Entry 7,
Ex. 4 at 1 (indicating date filed)).

The trial court denied the

MAR by order dated and filed April 18, 2012.

(Docket Entry 7, Ex.

4; see also Docket Entry 1, ¶ 11(a)(7), (8).)

Petitioner then

filed a pro se certiorari petition with the North Carolina Court of
Appeals, which he dated as submitted on July 30, 2012 (Docket Entry
7, Ex. 5 at 4), and which that court stamped as filed on August 2,
2012 (id. at 2).
August 7, 2012.

The Court of Appeals denied that petition on
(Docket Entry 7, Ex. 7.)

Subsequently, Petitioner filed a pro se motion for rehearing
with the state trial court which he dated as signed on November 7,
2012 (Docket Entry 7, Ex. 8 at 9; see also Docket Entry 1,
¶ 11(b)), and which the trial court accepted as filed on November
13, 2012 (Docket Entry 7, Ex. 8 at 2).

The trial court summarily

denied that motion by order dated and filed November 19, 2012.
(Docket Entry 7, Ex. 9; see also Docket Entry 1, ¶ 11(b)(7), (8).)
Thereafter, Petitioner filed a pro se petition for certiorari with
the North Carolina Court of Appeals (Docket Entry 7, Ex. 10), which
he dated as submitted on December 6, 2012 (id. at 11), and which
that court accepted as filed on December 10, 2012 (id. at 2).

On

December 20, 2012, the Court of Appeals denied that petition.
(Docket Entry 7, Ex. 11.)

2
For attachments to Respondent’s memorandum in support of his Motion for
Summary Judgment, pin citations refer to the page number in the footer appended
to said document by the CM/ECF system.

-2-

Petitioner thereafter submitted his instant Petition and a
“Brief/Memorandum of Law in Support” to this Court (Docket Entries
1, 2), which he dated as mailed on January 1, 2013 (Docket Entry 1
at 14; Docket Entry 2 at 8),3 and which the Court stamped as filed
on January 4, 2013 (Docket Entry 1 at 1; Docket Entry 2 at 1).4
Respondent then moved for summary judgment on both the merits and
statute of limitation grounds.
responded in opposition.

(Docket Entry 6.)

Petitioner

(Docket Entries 9, 10.)

Petitioner’s Claims
Petitioner purports to raise two claims for relief in his
Petition.

First, he alleges he received ineffective assistance of

counsel in that his trial counsel failed to file a motion to
suppress Petitioner’s “voluntary statement, which was inculpatory
in nature, [and] which was obtained via coersion [sic] and that was
probably false or at least unreliable.”
also Docket Entry 2 at 2-6.)

(Docket Entry 1 at 5; see

In his second claim for relief,

Petitioner asserts that, under Martinez v. Ryan, 566 U.S. 1 (2012),
no procedural bar should prevent him from pursuing that ineffective
assistance claim because he alleged the same claim in his MARs
while proceeding pro se.
Entry 2 at 6-8.)

(See Docket Entry 1 at 6; see also Docket

Thus, properly construed, Petitioner’s second

3

For attachments to the Petition, as well as 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.
4

Under Rule 3(d) of the Rules Governing Section 2254 Cases in United
States District Courts, the Court deems the instant Petition filed on January 1,
2013, the date Petitioner signed the Petition (under penalty of perjury) as
submitted to prison authorities. (See Docket Entry 1 at 14.)

-3-

claim constitutes an argument in support of his first claim rather
than an independent claim for relief.
Discussion
Respondent moves for summary judgment both on the merits of
Petitioner’s claims and on the grounds that Petitioner filed the
Petition outside of the one-year limitation period, 28 U.S.C.
§

2244(d)(1).

The

undersigned’s

recommendation

regarding

Defendant’s statute of limitation arguments, discussed in more
detail below, renders unnecessary a discussion of the underlying
merits of Petitioner’s claims.
In

order

to

assess

Respondent’s

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

-4-

(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.
Here,

the

state

trial

court

entered

judgment

against

Petitioner on March 25, 2011 (see Docket Entry 7, Ex. 1), and
Petitioner did not appeal.

As Respondent has asserted (Docket

Entry 7 at 3), and Petitioner has not disputed (see Docket Entries
9, 10), Petitioner’s convictions became final on March 25, 2011,
because he pled guilty and received a sentence in the presumptive
range for his offenses and prior record level, see N.C. Gen. Stat.
§ 15A-1340.17(c) & (e) (2011).

In North Carolina, defendants who

plead guilty have very limited grounds on which they can appeal.
See State v. Smith, 193 N.C. App. 739, 741-42, 668 S.E.2d 612, 61314 (2008) (enumerating limited grounds for appeal for defendants
who plead guilty); see also N.C. Gen. Stat. §§ 15A-979(b) & 15A1444.

Petitioner has not alleged or otherwise shown that any of

those grounds existed and thus Petitioner had no right to appeal.
-5-

Under these circumstances, Petitioner’s time to file a habeas
petition in this Court began to run on March 25, 2011. 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).5
The statute of limitations then ran for 305 days until
Petitioner filed his first MAR with the state trial court on
January 24, 2012 (Docket Entry 7, Ex. 3)6 and remained tolled until
5

Even if Petitioner had possessed a right to appeal, any such right would
have expired 14 days after the trial court entered judgment against him. See
N.C. R. App. P., Rule 4(a)(2). Given that Petitioner filed the instant Petition
approximately 87 days out of time, Petitioner’s entitlement to the benefit of
those additional 14 days would not impact the Court’s timeliness analysis.
6

Only “properly filed” documents can trigger tolling. 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). Here, Petitioner’s first MAR was not “properly
filed” on January 20, 2012, the date on which he signed it as submitted. North
Carolina law requires that MARs “be filed in the manner provided in G.S.
§ 15A-951(c).” N.C. Gen. Stat. § 15A-1420(a)(3). Under that subsection, “[a]ll
written motions must be filed with the court” accompanied by an appropriate
certificate of service. N.C. Gen. Stat. § 15A-951(c). The subsection does not
purport to deem MARs as filed at the time of mailing. Id. Further, the order
denying Petitioner’s MAR specifically stated that the motion was “filed” on
January 24, 2012. (Docket Entry 7, Ex. 4.) That declaration is consistent with
case law indicating that North Carolina does not apply a mailbox rule for
prisoner filings. See Bryson v. Harkleroad, No. 1:10CV36-3-MU, 2010 WL 1328313,
at *3-4 (W.D.N.C. April 1, 2010) (unpublished) (citing North Carolina v.
Kittrell, No. COA08-988, 197 N.C. App. 403, 677 S.E.2d 14, 2009 WL 1522698, at
*3-4 (June 9, 2009) (unpublished)), appeal dismissed, 405 F. App’x 773 (4th Cir.
2010)). Where states do not apply a mailbox rule to filings in their courts, at
least three federal circuits have held that federal courts should not apply a
mailbox rule to state court filings in making calculations under § 2244(d). See
Howland v. Quarterman, 507 F.3d 840, 845 (5th Cir. 2007); Garcia v. Shanks, 351
F.3d 468, 471-72 (10th Cir. 2003); Vroman v. Brigano, 346 F.3d 598, 603-04 (6th
Cir. 2003); but see Fernandez v. Artuz, 402 F.3d 111, 116 (2d Cir. 2005). Like
other courts, see, e.g., Bryson, 2010 WL 1328313, at *3-4; Vasquez v. Kingston,
422 F. Supp. 2d 1006, 1008-10 (E.D. Wis. 2006), the undersigned finds the
majority approach more persuasive. In particular, the view that state rules
control in this context has “heightened cogency in light of the United States
Supreme Court’s statement that when applying § 2244(d)(2), ‘an application is
“properly filed” when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.’” Vasquez, 422 F. Supp. 2d at 1009
(continued...)

-6-

August 7, 2012, when the North Carolina Court of Appeals dismissed
his certiorari petition seeking review of his first MAR’s denial
(Id., Ex. 7).

The limitations period subsequently ran for 60 more

days until it expired on October 6, 2012,7 without Petitioner
having filed any further state or federal habeas petitions.
Petitioner argues that he filed his Petition in a timely
manner, because statutory tolling applies for the entire time
between the date he filed his first MAR, January 24, 2012, and the
date on which the North Carolina Court of Appeals denied his second
certiorari petition, December 20, 2012.

(Docket Entry 1, ¶ 18.)

Defendant, in turn, urges the Court to construe Petitioner’s
November 13, 2012 motion for rehearing with the state trial court
as a second MAR which would not entitle Petitioner to statutory
tolling between the date on which the North Carolina Court of
Appeals denied his first certiorari petition, August 7, 2012, and
the filing of that second MAR, November 13, 2012.
at 14.)
motion

(Docket Entry 7

Defendant asserts that interpreting the filing as a true
for

reconsideration

would

permit

“[P]etitioner

[to]

indefinitely toll the one-year period of limitation by the simple
expedient of filing repetitive motions for rehearing after the
denial of an MAR” and would sanction an “obvious end run around the

6

(...continued)
(quoting Artuz, 531 U.S. at 8). For this reason, Petitioner’s first MAR was not
“properly filed” until January 24, 2012. In any event, the four-day difference
would not affect the outcome in this case.
7
In Defendant’s brief in support of his instant motion, Defendant
mistakenly identifies the filing deadline as “October 8, 2012.” (Docket Entry
7 at 13.)

-7-

one-year period of limitation . . . so as to defeat the intent of
Congress to provide greater finality for state court convictions.”
(Id.)

Defendant’s argument has merit, regardless of whether the

Court construes Petitioner’s filing as a motion for rehearing or as
a second MAR.
By statute, the limitations period remains tolled for “the
time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending.”
added).

28 U.S.C. § 2244(d)(2) (emphasis

In Carey v. Saffold, 536 U.S. 214, 220 (2002), the Supreme

Court concluded that an application for state post-conviction
relief remained pending “until the application has achieved final
resolution through the State’s post-conviction procedures.”

Here,

North Carolina’s statutory procedures for the pursuit of MARs do
not expressly allow for a state court motion for rehearing or any
further review following denial of a certiorari petition seeking
review of the MAR’s denial.

See N.C. Gen. Stat. § 15A-1422

(providing that “[t]he [state trial] court’s ruling on a [MAR] is
subject to review . . . [i]f the time for [direct] appeal has
expired and no appeal is pending, by writ of certiorari” and that
“[d]ecisions of the Court of Appeals on [MARs] . . . are final and
not subject to further review by appeal, certification, writ,
motion, or otherwise”) (emphasis added).

Thus, Petitioner’s first

MAR ceased “pending” when the North Carolina Court of Appeals
denied

his

Petitioner’s

first

certiorari

belated

(and

petition

arguably
-8-

on

August

impermissible)

7,

2012.

motion

for

rehearing certainly does not require the Court to statutorily toll
under 28 U.S.C. § 2244(d)(2) the period between the denial of
Petitioner’s

first

certiorari

petition

and

his

motion

for

rehearing.8
The same result follows if the Court construes the filing as
a second MAR.

Again, the limitations period remains tolled while

an application for state post-conviction relief is pending.

28

U.S.C. § 2244(d)(2). Thus, statutory tolling ended on the date the
Court of Appeals denied Petitioner’s first certiorari petition,
August 7, 2012, and the limitations period ran from that date until
it expired on October 6, 2012.

Petitioner’s November 13, 2012

filing, even construed as a second MAR, would not restart the
already-expired limitations period.

See Minter v. Beck, 230 F.3d

663, 665 (4th Cir. 2000).
Finally,

the

Supreme

Court

has

determined

that

§

2254

petitioners may avail themselves of equitable tolling of the oneyear limitation period if they meet two conditions.
Florida, 560 U.S. 631, 649 (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.”
DiGuglielmo, 544 U.S. 408, 418 (2005)).

Id. (quoting Pace v.

Petitioner has not argued

that his diligence and circumstances warrant equitable tolling (see

8

Arguably, Petitioner’s motion for rehearing also should be deemed not
“properly filed” under 28 U.S.C. § 2244(d)(2), as Petitioner did not submit it
“in accordance with state rules concerning form of document, time limits, and
proper court and office for filing.” Artuz, 531 U.S. at 8.

-9-

Docket Entry 1, ¶ 18), nor does the record independently establish
satisfaction of these requirements.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 6) be granted, that the Petition
(Docket Entry 1) be denied, and this action be dismissed.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 11, 2014

-10-