WARREN v. YOUNG

Filing 10

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 3/26/2014, recommending that Respondent's Motion to Dismiss (Docket Entry 5 ) be granted, the Petition (DocketEntry 2 ) be dismissed, and that this action be dismissed. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SEAN DEREK WARREN,
Petitioner,
v.
KIERAN SHANAHAN,
Respondent.

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1:13CV72

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 April 6, 1995, a jury in the Superior Court of

Guilford County found Petitioner guilty of first and second degree
kidnapping and robbery with a dangerous weapon in cases 93 CRS
75130, 75131 and 75134.

(Docket Entry 6, Ex. 4 at 10-11, 26-27;

see also Docket Entry 2, ¶¶ 1, 2, 4-6.)1

The trial court sentenced

Petitioner to two consecutive terms of 40 years’ imprisonment.
(Docket Entry 6, Ex. 4 at 10-11, 26-27; see also Docket Entry 2,
¶ 3.)

Petitioner filed a direct appeal (see Docket Entry 2, ¶¶ 8,

9(a) - (f)) and, on June 18, 1996, the North Carolina Court of
Appeals found no error, State v. Warren, 122 N.C. App. 738, 471
S.E.2d 667 (1996).
Petitioner thereafter filed a pro se motion for appropriate
relief (“MAR”) with the state trial court, which he dated as signed
on November 22, 2005 (Docket Entry 6, Ex. 2 at 8; see also Docket

1
For attachments to Respondent’s memorandum in support of his Motion to
Dismiss, pin citations refer to the page number in the footer appended to said
document by the CM/ECF system.

Entry 2 at 6-7),2 and which the trial court accepted as filed on
February 2, 2006 (Docket Entry 6, Ex. 2 at 2).

The trial court

summarily denied the MAR by order dated and filed September 7,
2006.

(Docket Entry 6, Ex. 3; see also Docket Entry 2 at 7.)

Subsequently, Petitioner filed a second pro se MAR with the
state trial court (Docket Entry 6, Ex. 4), which he dated as signed
on August 5, 2009 (id. at 28), and which the trial court accepted
as filed on August 14, 2009 (id. at 2).

The trial court summarily

denied that motion by order dated and filed September 18, 2009.
(Docket Entry 6, Ex. 5.)

Thereafter, Petitioner filed a pro se

petition for certiorari with the North Carolina Court of Appeals
(Docket Entry 6, Ex. 6), which he dated as submitted on October 30,
2009 (id. at 10), and which that court accepted as filed on
December 3, 2009 (id. at 2).

On December 10, 2009, the Court of

Appeals denied that petition. (Docket Entry 6, Ex. 8.) Petitioner
filed a second pro se certiorari petition with the Court of Appeals
(Docket Entry 6, Ex. 9), which he dated as submitted on September
5, 2012 (id. at 6), and which that court accepted as filed on
September 10, 2012 (id. at 2).

On September 17, 2012, the Court of

Appeals denied the second certiorari petition.

(Docket Entry 6,

Ex. 11.)
Petitioner thereafter submitted his instant Petition to this
Court (Docket Entry 2), which he dated as mailed on January 22,
2013 (Docket Entry 2 at 14), and which the Court stamped as filed

2
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.

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on January 29, 2013 (Docket Entry 2 at 1).3

Respondent then moved

to dismiss the Petition on statute of limitation grounds.
Entry 5.)

Petitioner responded in opposition.

(Docket

(Docket Entry 8.)

For the reasons that follow, the Court should grant Respondent’s
instant Motion.
Petitioner’s Claims
Petitioner raises two claims for relief in his Petition.
First,

he

alleges

that

the

state

trial

court

imposed

an

“unauthorized” sentence for his first degree kidnapping conviction.
(See Docket Entry 2 at 5.)

Second, he claims entitlement to an

“extremely more lenient” sentence for his kidnapping convictions
under the North Carolina Structured Sentencing Act. (See id. at 67.)
Discussion
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;

3
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 22,
2013, the date Petitioner signed the Petition (under penalty of perjury) as
submitted to prison authorities. (See Docket Entry 2 at 14.)

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(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).4
In Petitioner’s response in opposition to Respondent’s motion
to dismiss, Petitioner argues that “the statute of limitations oneyear

period

under

section

28

U.S.C.

§

2254

[sic]

(d)(1)

is

inapplicable to Petitioner’s claim because the claim and amended
[sic] to law was not available until after the one year period had
expired.”

(Docket Entry 8 at 3.)

Petitioner claims that “the law

regarding his sentence was amended by the state of North Carolina
. . . in 1998, 3 years after Petitioner was convicted.”
(parentheses omitted).

(Id.)

Petitioner is essentially asserting that

the statute of limitation contained in subparagraph (D) above
applies, because he could not, even through the exercise of due
diligence, have learned of the factual predicate of his claim,

4
To the extent Petitioner challenges the constitutionality of Section
2254(d) (see Docket Entry 8 at 1), that contention fails. See, e.g., Wyzykowski
v. Department of Corr., 226 F.3d 1213, 1217 (11th Cir. 2000) (“Every court which
has addressed the issue - i.e., whether, as a general matter, § 2254(d)
constitutes an unconstitutional suspension of the writ - has concluded that it
does not.”).

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i.e., the change in the sentencing law, until its alleged enactment
in “1998.”
Even
Carolina’s

(Id.)
assuming

Petitioner’s argument falls short.
Petitioner

sentencing

law

correctly

changed

in

contends

1998,5

the

that

North

statute

of

limitation under subparagraph (D) would have started running at the
time of enactment, see Wade v. Robinson, 327 F.3d 328, 333 (4th
Cir. 2003) (holding that limitations period under § 2244(d)(1)(D)
starts when inmate could have discovered factual predicate “through
public sources”), and would have fully expired a year later in
1999.

As detailed above, Petitioner did not file any state or

federal habeas petitions that would statutorily toll the running of
the limitations period until 2006, years after the limitations
period in question would have expired. Thus, Petitioner’s reliance
on the limitations period provided by subparagraph (D) does not
render his Petition timely.
Given that fact and the fact that subparagraphs (B) and (C) of
§ 2244(d)(1) do not apply in this case, the only other possible
commencement point for Petitioner’s one-year limitation period
falls 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). As Respondent has

5
Respondent points out that North Carolina’s Structured Sentencing Act
(“SSA”), which replaced the former Fair Sentencing Act (“FSA”), applied to
offenses committed on or after October 1, 1994. (Docket Entry 6 at 7, citing
N.C. Gen. Stat. § 15A-1340.10.) Petitioner’s kidnapping and robbery offenses
occurred on November 29, 1993. (Docket Entry 6, Ex. 4 at 10-11, 26-27.) Thus,
through the exercise of due diligence, Petitioner should have known, as of the
date of his convictions (April 6, 1995), that the former FSA rather than the SSA
applied to his convictions.

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asserted (Docket Entry 6 at 3), and Petitioner has not disputed
(see Docket Entry 8), Petitioner’s convictions became final on July
23, 1996, 35 days after the North Carolina Court of Appeals issued
its June 18, 1996 opinion affirming Petitioner’s convictions and
sentences. See N.C. R. App. P. 32(b) (providing that, 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); Saguilar v. Harkleroad, 348 F. Supp. 2d 595,
598-600 (M.D.N.C. 2004) (holding conviction final on direct review
35 days after Court of Appeals’ opinion where no timely petition
for Supreme Court discretionary review filed).

The limitations

period then ran for 365 days until it expired a year later on July
23, 1997, over 15 years before Petitioner brought this action under
§ 2254.
In the face of the foregoing time-line of events, Petitioner
offers several reasons why he believes the Court should consider
the Petition, notwithstanding the limits imposed by § 2254(d).
(Docket Entry 2, ¶ 18.)

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. 631, 649
(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)).
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First, Petitioner contends the Court should excuse his late
filing due to “lack of . . . attorney representation and knowledge
of the law after [his] appeal was denied.”

(Docket Entry 2, ¶ 18.)

Petitioner further asserts that he “never spoke with or had a
single visit from [his] appellate attorney(s) just a few letters
[he] didn’t understand at that time.” (Id.) Petitioner appears to
implicitly

argue

that

equitable

tolling

applies

because

his

appellate counsel failed to advise him of his right to file a state
or

federal

limitations.

habeas

petition

or

of

the

one-year

statute

of

The Court finds no merit to this argument.

As an initial matter, Petitioner identified Roe v. FloresOrtega, 528

U.S.

470 (2000),

as

purported

authority

for

the

proposition that appellate counsel has an obligation to advise a
defendant of post-conviction options other than direct appeal.

In

fact, Roe holds only “that [trial] counsel has a constitutionally
imposed duty to consult with the defendant about an appeal when
there is reason to think either (1) that a rational defendant would
want to appeal (for example, because there are nonfrivolous grounds
for appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing.” Roe,
528 U.S. at 480.

Roe does not impose on appellate attorneys any

obligation to advise their clients about post-conviction remedies.
Even if Petitioner’s appellate counsel had borne a duty to
advise Petitioner about post-conviction remedies and failed to
satisfy it in this case, Petitioner’s argument still misses the
mark.

Simple negligence does not warrant equitable tolling.
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See

Holland, 560 U.S. at 651-52; see also Hutchinson v. Florida, 677
F.3d 1097, 1100 (11th Cir. 2012) (“If attorney miscalculation,
error,

or

negligence

were

enough

for

equitable

tolling,

the

§ 2244(d) statute of limitations would be tolled to the brink of
extinction . . . .”).
constitute

an

“[T]o rise to the level necessary to

‘extraordinary

circumstance,’

.

.

.

attorney

negligence must be so egregious as to amount to an effective
abandonment

of

the

attorney-client

relationship.”

Rivas

v.

Fischer, 687 F.3d 514, 538 (2d Cir. 2012); see also Maples v.
Thomas, 565 U.S. ___, ___ - ___ & n.7, 132 S. Ct. 912, 922-27 & n.7
(2012)

(holding

that

attorneys’

abandonment

of

petitioner

constituted cause to overcome procedural default and remarking that
distinction between attorney negligence and attorney abandonment
should apply equally in equitable tolling context). Petitioner has
not alleged facts establishing such abandonment.6
Second, Petitioner claims entitlement to equitable tolling
because

he

lacked

“attorney

representation”

during

his

post-

conviction period, lacked “knowledge of the law,” had “no access to
a law library or legal materials,” and remained “incarcerated
inside the North Carolina Department of Public Safety.”

(Docket

Entry 2, ¶ 18; see also Docket Entry 8 at 2 (giving as one of the

6
Petitioner’s vague allegations that he “never spoke with or had a single
visit from [his] appeals attorney(s) just a few letters [he] didn’t understand
at that time” (Docket Entry 2, ¶ 18) do not suffice as a showing of attorney
abandonment warranting equitable tolling, particularly where Petitioner makes no
claim (and the record does not reveal) that his appellate attorneys failed to
pursue his direct appeal.
See, e.g., Hutchinson, 677 F.3d at 1099 (“[T]he
allegations supporting equitable tolling must be specific and not conclusory.”);
Smith v. Virginia, No. 3:12CV148, 2013 WL 871519, at *4 (E.D. Va. Mar. 8, 2013)
(unpublished) (“[C]onclusory allegations fail to meet the high burden required
to demonstrate entitlement to equitable tolling.”).

-8-

“Reasons” the Court should deny Respondent’s instant Motion the
fact that “Petitioner is a prisoner of the State of North Carolina
. . . [who] is indigent, a lay person at law and its procedure
without any means of obtaining counsel, legal materials, knowledge,
etc.”).

In these regards, Petitioner essentially argues that the

Court should excuse him from complying with the one-year statute of
limitations because he lacked familiarity with post-conviction
remedies.

However, 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);
see also Gray v. Lewis, No. 1:11CV91, 2011 WL 4022787, at *3
(M.D.N.C. Sept. 9, 2011) (unpublished) (concluding that lack of
prison libraries

and

delay

in

receipt

of

support

from

North

Carolina Prisoner Legal Services did not warrant equitable tolling)
(citing Hood v. Jackson, No. 5:10-HC2008-FL, 2010 WL 4974550, at *2
(E.D.N.C. Dec. 1, 2010) (unpublished), and 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.)).

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IT

IS

THEREFORE

RECOMMENDED

that

Respondent’s

Motion

to

Dismiss (Docket Entry 5) be granted, that the Petition (Docket
Entry 2) be dismissed, and that this action be dismissed.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 26, 2014

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