WHITE v. TERRELL
Filing
9
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 4/2/2014, RECOMMENDING that Respondent's Motion to Dismiss (Docket Entry 5 ) be granted, that the Petition (Docket Entries 1 , 2 ) be dismissed, and that this action be dismissed. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANDREW DAVID WHITE,
Petitioner,
v.
DUANE TERRELL,
Respondent.
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1:13CV122
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
Entries 1, 2.) On November 16, 2006, Petitioner pled guilty in the
Superior Court of Guilford County to first degree murder in case 06
CRS 70305.
(Docket Entry 1, ¶¶ 1, 2, 4-6; see also Docket Entry 1-
2 at 11-12.)1
The trial court sentenced Petitioner to life
imprisonment without the possibility of parole.
¶ 3; see also Docket Entry 1-3 at 30-31.)
pursue a direct appeal.
(Docket Entry 1,
Petitioner did not
(See Docket Entry 1, ¶ 8.)
Petitioner did file a pro se “Motion for Discovery” (Docket
Entry 1-2 at 14-15) and “Motion for Preparation of a Stenographic
Transcript” (id. at 16-18) with the trial court, both of which he
dated as signed on December 29, 2008 (id. at 15, 18), and which
that court stamped as filed on January 6, 2009 (id. at 14, 16).
The trial court denied both motions in a single order dated January
16, 2009 (id. at 20), and filed on January 20, 2009 (id. at 19).
1
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.
Petitioner thereafter filed a pro se motion for appropriate
relief (“MAR”) with the trial court (Docket Entries 1-1, 1-2 & 1-3;
see also Docket Entry 1, ¶ 11(a)),2 which that court accepted as
filed on February 29, 2012 (Docket Entry 1-3 at 54 (indicating date
filed); see also Docket Entry 1, ¶ 11(a)(3)).
The trial court
denied the MAR by order dated and filed August 27, 2012 (Docket
Entry 1-3 at 54; see also Docket Entry 1, ¶ 11(a)(7), (8)).
Petitioner sought review of that denial by filing a certiorari
petition in the North Carolina Court of Appeals (Docket Entry 2 at
1-13; see also Docket Entry 1, ¶ 11(b)), which he signed as
submitted on January 1, 2013 (Docket Entry 2 at 11),3 and which
that court accepted as filed on January 10, 2013 (id. at 17
(indicating
date
filed)).
The
petition on January 28, 2013.
Court
of
Appeals
denied
that
(Docket Entry 2 at 17; see also
Docket Entry 1, ¶ 11(b)(7), (8).)
Petitioner thereafter submitted his instant Petition to this
Court (Docket Entries 1, 2), which he dated as mailed on February
6, 2013 (Docket Entry 1 at 14), and which the Court stamped as
filed on February 11, 2013 (id. at 1).4
Respondent then moved to
2
Petitioner provided an unsigned, undated copy of his MAR to this Court.
He stated in his subsequently filed certiorari petition in the North Carolina
Court of Appeals that he mailed that MAR to the state trial court on February 24,
2012. (See Docket Entry 2 at 6.)
3
Although Petitioner signed the certiorari petition as submitted on
January 1, 2013 (see Docket Entry 2 at 11), the certificate of service reflects
mailing for filing with the Court of Appeals and service upon the government on
January 8, 2013 (see id. at 13).
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 February
6, 2013, the date Petitioner signed the Petition (under penalty of perjury) as
(continued...)
-2-
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 three claims for relief in his Petition.
First, he alleges that he received ineffective assistance of
counsel in that his trial counsel “did not do his job[,] . . . gave
up on the [d]efense and told [Petitioner] that his case was [d]ead
[o]n [a]rrival, strongly influencing [Petitioner] to sign a plea.”
(Docket Entry 1 at 5.)
second
attorney,
situation.”
Petitioner additionally asserts that “[a]
added
(Id.)
later,
Second,
did
nothing
to
rectify
Petitioner claims that
this
while he
remained in state custody, interrogators obtained a Miranda waiver
that failed to meet the “knowing, voluntary and intelligent” test
and an involuntary confession, in violation of his privilege
against self-incrimination under the Fifth Amendment.
7.)
(Id. at 6-
Third, he asserts that the trial court erred by accepting a
plea that failed to meet the “knowing and voluntary” test due to
the ineffective assistance of his trial counsel and his impaired
mental state caused by “excessive and inappropriate medication.”
(Id. at 8.)5
4
(...continued)
submitted to prison authorities.
(See Docket Entry 1 at 14.)
5
In each of his claims for relief, Petitioner asks the Court to “[s]ee”
certain pages in his state court MAR (namely pages 11 through 22), which he
attached to his instant Petition, presumably for further elaboration of the bases
(continued...)
-3-
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;
(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).
Petitioner
attempts
to
alleges
obtain
the
that
he
papers
“made
various
necessary
to
unsuc[c]essful
undertake
post-
conviction proceedings” and that, “[a]fter a protracted effort, he
finally received [d]iscovery from his lawyer on May 10, 2011.”
5
(...continued)
of such claims. (See Docket Entry 1 at 5, 6, 8.)
-4-
(Docket Entry 1, ¶ 18.)
He claims that “basic forms available
through the Clerk of Superior Court were NOT adequate” and that
“Exhibits
N,
“indispensable
earlier.
V-Z,
AA-EE,
information”
and
LL-PP”
which
(Docket Entry 8 at 1.)
he
to
his
could
not
MAR
contained
have
obtained
He argues that “[u]sing this date
- May 10, 2011 - and pausing from the mailing of [the MAR] (2-2412) until [the] [o]rder denying [certiorari] (1-28-13), [he] is
well within the one year time limit.”
(Docket Entry 1, ¶ 18.)
He
thus concludes that he filed his instant Petition in a timely
manner under 28 U.S.C. § 2244(d)(1)(D).
(Id.)
Petitioner’s
argument misses the mark.
The statute of limitations begins to run under subparagraph
(D)
when
the
factual
predicate
of
a
claim
“could
have
been
discovered through the exercise of due diligence,” not upon its
actual discovery.
28 U.S.C. § 2244(d)(1)(D); Schlueter v. Varner,
384 F.3d 69, 74 (3d Cir. 2004).
Here, one of Petitioner’s claims
involves alleged Miranda errors while in custody at the time of his
arrest and the remaining two claims involve ineffective assistance
of counsel up to and including the time of his plea as well as
trial court error in accepting his plea.
Thus, even if receipt of
trial counsel’s file aided Petitioner in the pursuit of the claims
he asserts in the instant Petition,6 Petitioner should have known
6
The MAR Exhibits Petitioner posits as “indispensable” to the claims in
the instant Petition consist of a request for a pretrial conference, an order
granting same and an order requesting the Office of Indigent Defense
Services/Office of the Capital Defender to appoint a second trial counsel for
Petitioner (Docket Entry 1-2 at 8-10 (MAR Exhibit N)); medical records from
Petitioner’s in-patient treatment at a hospital at the time of the crime (Docket
(continued...)
-5-
of the basis of his claims at or before the time he pled guilty,
November 16, 2006.
Thus, the date on which Petitioner actually
obtained those records does not control in this context.
Sistrunk
v. Rozum, 674 F.3d 181, 189 (3d Cir. 2012) (holding that “evidence
that is
previously
constitute
newly
(citation
and
known,
but
discovered
internal
only
newly
evidence”
quotation
under
marks
available
does not
subparagraph
omitted).
(D))
Thus,
subparagraph (D) does not apply with respect to Petitioner’s
receipt of his attorney’s file.
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
asserted (Docket Entry 6 at 3), and Petitioner has not disputed
(see Docket Entry 8), Petitioner’s convictions became final on
November 16, 2006, because he pled guilty and received one of only
6
(...continued)
Entry 1-2 at 23-33; Docket Entry 1-3 at 32-33, 42 (MAR Exhibits V, W, X, LL, MM,
PP)); medical records reflecting Petitioner’s prior mental health treatment
(Docket Entry 1-3 at 1-13 (MAR Exhibits AA-EE)); an incident report pertaining
to Petitioner’s hospital stay at the time of the crime and a Miranda waiver form,
both prepared by the Guilford County Sheriff’s Department (Docket Entry 1-3 at
34-36 (MAR Exhibits NN, OO)); and a mandamus petition and affidavit in support
seeking access to Petitioner during his hospital stay at the time of the crime
filed by a different attorney than Petitioner’s trial counsel (Docket Entry 1-2
at 34-41 (MAR Exhibits Y, Z)). Petitioner makes no attempt to explain how those
documents are “indispensable” to his instant claims. Moreover, Petitioner’s
trial counsel did not create any of those documents and, thus, Petitioner fails
to explain why he could not have, with the exercise of due diligence, obtained
those documents from sources other than his trial counsel at an earlier time than
May 10, 2011.
-6-
two permissible sentences for his offense (the other available
sentence being death).
1340.17(c) (2006).
See N.C. Gen. Stat. §§ 14-17 (2006), 15A-
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, 613-14 (2008)
(enumerating limited grounds for appeal for defendants who plead
guilty);
see
also
N.C.
Gen.
Stat.
§§
15A-979(b),
15A-1444.
Petitioner has not alleged or otherwise shown that any of these
grounds existed and thus he had no right to appeal.
Under these
circumstances, Petitioner’s time to file a habeas petition in this
Court began to run on November 16, 2006. 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).7
The limitations
period then ran for 365 days until it expired on November 16, 2007,
over five years before Petitioner brought this action under § 2254.
Petitioner did make certain state collateral filings, which
generally toll the federal habeas deadline 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),” Taylor v. Lee, 186 F.3d 557, 561 (4th
7
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 when Petitioner filed his instant Petition,
those 14 days would not affect the timeliness analysis.
-7-
Cir. 1999).
Petitioner, however, did not make any collateral
filings in the state courts until well after his time to file a
federal habeas claim had already expired. State filings made after
the federal limitations period has passed do not restart or revive
the filing period.
See Minter v. Beck, 230 F.3d 663, 665 (4th Cir.
2000).
In his filings in this matter, Petitioner does not assert
entitlement
to
equitable
tolling
of
the
one-year
limitations
period, 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)).
To the extent Petitioner’s above-referenced arguments
seeking
delayed
commencement
of
the
limitations
period
under
Section 2244(d)(1)(D) constitute a request for equitable tolling,
the materials before the Court demonstrate neither the requisite
diligence nor an “extraordinary circumstance” that prevented timely
filing.8
8
In his response to the instant Motion, Petitioner challenges the validity
[of Section 2244(d)] based on Article I, Section 9 of the U.S. Constitution[.]”
(Docket Entry 8 at 2.) That contention lacks merit. See, e.g., Wyzkowsi 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, § 2244(d) constitutes
an unconstitutional suspension of the writ - has concluded that it does not.”).
-8-
IT
IS
THEREFORE
RECOMMENDED
that
Respondent’s
Motion
to
Dismiss (Docket Entry 5) be granted, that the Petition (Docket
Entries 1, 2) be dismissed, and that this action be dismissed.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 2, 2014
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