MCNEAIR v. PERITT

Filing 8

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 3/27/2014, recommending that Respondent's Motion to Dismiss (Docket Entry 5 ) be granted, that 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
ERIC BERNARD MCNEAIR,
Petitioner,
v.
BRAD PERRITT,
Respondent.

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1:13CV244

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.)
Petitioner

(Docket

A jury in the Superior Court of Davidson County found
guilty

of

first

degree

kidnapping,

first

degree

burglary, violation of a domestic protective order, and resisting
a public officer, whereafter he pled no contest to attaining
habitual felon status, in cases 03 CRS 8923, 8924, 54085, 54087,
and 54089.

(Docket Entry 6, Ex. 5 at 39-40; see also Docket Entry

2, ¶¶ 1, 2, 4-6.)1

On April 1, 2004, the trial court consolidated

the convictions into one Class C felony and sentenced Petitioner in
the presumptive sentencing range for his prior record level to 150
to 189 months of imprisonment.
also Docket Entry 2, ¶ 3.)

(Docket Entry 6, Ex. 5 at 23; see

Petitioner filed a direct appeal (see

Docket Entry 2, ¶¶ 8, 9(a) - (f)) and, on August 16, 2005, the

1
Documents attached to the Petition confirm the nature of the disposition
of the habitual felon charge. (Docket Entry 2 at 16-19.) 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. The same convention applies to attachments to Respondent’s brief.

North Carolina Court of Appeals found no error, State v. McNeair,
No. COA04-1358, 172 N.C. App. 593 (table), 616 S.E.2d 692 (table),
2005 WL 1950265 (Aug. 16, 2005) (unpublished).

On January 26,

2006, the North Carolina Supreme Court denied Petitioner’s request
for discretionary review in State v. McNeair, ___ N.C. ___, 629
S.E.2d 279 (2006).

(See Docket Entry 2, ¶¶ 9(g), 11(a).)2

Petitioner thereafter filed a pro se motion for appropriate
relief (“MAR”) with the state trial court, which he dated as signed
on March 11, 2009 (Docket Entry 6, Ex. 3 at 11), and which the
trial court accepted as filed on March 25, 2009 (Docket Entry 6,
Ex. 4 at 1 (indicating date filed)).

The trial court summarily

denied the MAR by order dated March 30, 2009, and filed April 1,
2009.

(Docket Entry 6, Ex. 4.)

Petitioner then filed a pro se

certiorari petition with the North Carolina Court of Appeals
(Docket Entry 6, Ex. 5; see also Docket Entry 2 at 7), which he
dated as submitted on December 13, 2012 (Docket Entry 6, Ex. 5 at
11), and which that court stamped as filed on December 27, 2012
(id. at 2).
14, 2013.

The Court of Appeals denied that petition on January
(Docket Entry 6, Ex. 7.)

Petitioner thereafter submitted his instant Petition to this
Court (Docket Entry 2), which he dated as mailed on March 23, 2013
(Docket Entry 2 at 15), and which the Court stamped as filed on

2
Although Petitioner indicated that he filed a petition for certiorari
with the United States Supreme Court (see Docket Entry 2, ¶ 9(h)), in response
to a request for the docket or case number, he provided the docket number of his
petition for discretionary review with the North Carolina Supreme Court (see id.,
¶ 9(h)(1)). The record before the Court does not contain any evidence that
Petitioner in fact filed a certiorari petition with the United States Supreme
Court.

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March 26, 2013 (Docket Entry 2 at 1).3

Respondent moved to dismiss

the Petition on statute of limitation grounds (Docket Entry 5), but
Petitioner has not responded despite notice from the Clerk of Court
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (see
Docket Entry 7; Docket Entries dated Apr. 25, 2013, to present).
For the reasons that follow, the Court should grant Respondent’s
instant Motion.
Petitioner’s Claims
Petitioner raises four claims for relief in his Petition: (1)
he received “a sentence of 15 months higher than the statutory
minimum

and

21

months

above

the

statutory

maximum

of

the

presumptive range” without his consent and without the jury finding
any aggravating factors (Docket Entry 2 at 5); (2) “[t]he trial
court imposed an aggravated sentence outside the scope of the
jury’s verdict” because “Petitioner did not commit any act with
deliberate cruelty” (id. at 7); (3) the trial court relied on an
aggravating factor based on prior convictions that the jury did not
find and to which Petitioner did not admit (see id. at 8); and (4)
the trial court exceeded its “proper authority” by finding an
aggravating factor due to Petitioner being on pre-trial release at
the time of the offenses at issue without the jury having “found
all the facts which the law makes essential to the punishment” (id.
at 10).

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 March 23,
2013, the date Petitioner signed the Petition (under penalty of perjury) as
submitted to prison authorities. (See Docket Entry 2 at 15.)

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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).
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).
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The Court thus must ascertain

when direct review (or the time for seeking direct review) of
Petitioner’s underlying conviction ended.
As

Respondent

has

asserted

(Docket

Entry

6

at

4),

and

Petitioner has not disputed (see Docket Entries dated from Apr. 25,
2013, to present), Petitioner’s convictions became final on April
26, 2006, 90 days after the January 26, 2006 order of the North
Carolina Supreme Court denying his petition for discretionary
review.

See Clay v. United States, 537 U.S. 522, 527 (2003)

(holding that “[f]inality attaches when this Court affirms a
conviction on the merits on direct review or denies a petition for
a writ of certiorari, or when the time for filing a certiorari
petition expires” (internal citations omitted)); see also Sup. Ct.
R. 13.1 (allowing petitioners 90 days after highest state appellate
court’s denial to file for writ of certiorari).

The limitations

period then ran for 365 days until it expired a year later on April
26, 2007, nearly six 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
Cir. 1999).

Petitioner, however, did not make any collateral

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filings in the state courts until March 25, 2009,4 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).
Petitioner disputes the foregoing time-line, claiming that
“[t]he Supreme Court unanimously held in Jimenez v. Quarterman,
[555 U.S. 113 (2009)], that where[] a state court grants a criminal
defendant the right to file an out-of-time direct appeal during
state collateral review but before the defendant has sought federal
habeas

relief,

his

judgment

is

not

‘final’

for

purposes

of

§ 2244(b)(1)(A) until the conclusion of the out-of-time direct
appeal or the expiration of the time for seeking certiorari review
of the appeal.”

(Docket Entry 2, ¶ 18.)

This argument misses the

mark.
Petitioner did not seek, and the North Carolina Court of
Appeals did not grant him, the right to file an out-of-time direct
appeal.

The record demonstrates that Petitioner filed a timely

direct appeal with the assistance of counsel (see Docket Entry 6,
Ex. 1; see also Docket Entry 2, ¶ 16(e)), and then petitioned the
North Carolina Court of Appeals for review of his MAR’s denial
years later (see Docket Entry 6, Ex. 5; see also Docket Entry 2,
¶¶ 8, 9(a) - (f)).

The one-year period to file in this Court thus

4
Even if the Court treated the MAR’s filing date as March 11, 2009, the
date Petitioner signed the document (see Docket Entry 6, Ex. 3 at 11), the
timeliness analysis would not change, as his MAR would still remain nearly two
years beyond the expiration of the one-year limitations period.

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commenced

after

convictions

Petitioner’s

became

final.

direct

appeal

Moreover,

as

concluded

discussed

and

his

above,

no

statutory tolling applies for his state post-conviction petitions,
as he filed them after the one-year period had already expired.
Minter, 230 F.3d at 665.

The rule of Jimenez simply does not apply

to Petitioner’s circumstances.
Next, Petitioner advances a reason why he believes the Court
should consider the Petition despite its untimeliness.
Entry 2, ¶ 18.)

(Docket

In other words, Petitioner 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)).
Specifically, Petitioner contends that under the persuasive
authority of Gratzer v. Mahoney, 397 F.3d 686, 690 (9th Cir. 2005),
the Court should overlook his Petition’s untimeliness because the
delay caused the State no prejudice.

(Docket Entry 2, ¶ 18.)

This

argument lacks merit.
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”),
effective April 24, 1996, mandates the one-year limitations period
at issue here.

AEDPA superceded Rule 9(a) of the Rules Governing

Section 2254 Cases in the United States District Courts and prior
practice as to the doctrine of laches in habeas cases, both of
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which involved a determination of prejudice to the State as a
result of the delay.

See Langley v. Director, Dep’t of Corr., No.

2:09cv436,

2483876,

2010

(unpublished).5

WL

at

*6

(E.D.

Va.

May

28,

2010)

Under AEDPA, the “prejudice” to Respondent has no

bearing on the timeliness analysis. Furthermore, the case cited by
Petitioner provides no basis for the Court to examine the prejudice
to Respondent because it involved convictions and a § 2254 petition
that predated the passage of AEDPA.
IT

IS

THEREFORE

RECOMMENDED

See Gratzner, 397 F.3d at 689.
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 27, 2014

5
Rule 9(a) provided that “[a] petition may be dismissed if it appears that
the state of which the respondent is an officer has been prejudiced in the
ability to respond to the petition by delay in its filing unless the petitioner
shows that it is based on grounds of which he could not have had knowledge by the
exercise of reasonable diligence before the circumstances prejudicial to the
state occurred.”

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