WILSON v. HARDEE
Filing
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RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 08/25/2014, that Respondent's Motion for Summary Judgment [Doc. # 8 be granted, that the claims raised in the Petition [Doc. # 2 be dismissed and denied as set out in the body of this Recommendation, and that this action be dismissed.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
COLLINS S. WILSON,
Petitioner,
v.
MIKE HARDEE,
Respondent.
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1:13CV272
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Collins S. Wilson, a prisoner of the State of North Carolina, has brought a
Petition [Doc. #2] seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which
Respondent opposes with a Motion for Summary Judgment [Doc. #8]. On August 13,
2008, in the Superior Court of Moore County, Petitioner was convicted of felonious breaking
or entering of a motor vehicle with intent to commit larceny therein, misdemeanor larceny,
misdemeanor possession of stolen goods, communicating threats, and simple assault. State
v. Wilson, No. COA09-815, 2010 WL 2163357 (N.C. App. June 1, 2010). He then pled
guilty to having the status of a habitual felon before receiving sentences of 151 to 191
months of imprisonment for the habitual felon and breaking or entering conviction and
shorter consecutive sentences ranging from 60 to 120 days for his other convictions. Id.
Petitioner filed a direct appeal, which concluded on June 1, 2010, when the North Carolina
Court Appeals denied the appeal and he failed to seek further review. Id. Attempts to
resurrect that appeal by seeking certiorari from the North Carolina Supreme Court and
United States Supreme Court in 2013 proved unsuccessful. See State v. Wilson, 366 N.C.
431, 736 S.E.2d 499 (2013), cert. denied, 133 S. Ct. 2811 (2013). On October 3, 2011,
Petitioner filed a Motion for Appropriate Relief (MAR) in Moore County. When the MAR
was denied, Petitioner sought a writ of certiorari from the North Carolina Court of Appeals,
which denied certiorari on January 4, 2012. Then, on April 5, 2012, Petitioner filed a second
MAR in the trial court, which led to a further denial, a second attempt at a writ of certiorari
in the North Carolina Court of Appeals, and, on February 14, 2013, a second denial of
certiorari from that court. On March 28, 2013, Petitioner signed and dated his current
Petition, which the Court received on April 1, 2013.
After being ordered to answer,
Respondent filed its Motion for Summary Judgment.
Petitioner’s Claims
Petitioner raises three claims for relief in his Petition. First, he contends that his
sentence as a habitual felon is disproportionate in light of the crime he committed and that
he is entitled to resentencing based on changes in North Carolina sentencing law that
occurred in 2009 and 2011. (Petition, § 12, Ground One; Attach.) Second, he claims that
his habitual felon indictment was invalid because it listed a felony conviction for a date on
which he had no prior conviction. (Id., Ground Two; Attach.) Finally, Petitioner alleges that
he received ineffective assistance of counsel because his attorney failed to argue certain
mitigating factors at sentencing. (Id., Ground Three; Attach.)
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Statute of Limitations
With the exception of Petitioner’s claim that he is entitled to resentencing under the
2011 amendment to North Carolina’s sentencing laws, Respondent seeks dismissal of
Petitioner’s claims on the ground that Petitioner filed them outside of the applicable one-year
limitation period, 28 U.S.C. § 2244(d)(1).
In order to assess Respondent’s statute of
limitations 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 does not appear to argue, and the record does not reveal, any basis for
concluding that subparagraphs (B), (C), or (D) of § 2244(d)(1) apply in this case as to the
claims challenged as untimely by Respondent. Therefore, Petitioner’s one-year limitation
period commenced on “the date on which the judgment became final by the conclusion of
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direct review or the expiration of the time for seeking such review,” 28 U.S.C.
§ 2244(d)(1)(A). The Court must examine when direct review (or the time for seeking direct
review) of Petitioner’s underlying conviction ended.
As Respondent asserts (Respondent’s Brief [Doc. #10] at 4), and Petitioner has not
disputed, Petitioner’s convictions became final on July 6, 2010, 35 days after the North
Carolina Court of Appeals denied his direct appeal, or the date on which his time to seek
discretionary review from the North Carolina Supreme Court expired. Gonzalez v. Thaler,
132 S. Ct. 641, 656 (2012); N.C. R. App. 32(b), 14(a) and 15(b). Petitioner’s time to file in
this Court then ran for a year and expired on July 6, 2011, without him having filed a habeas
petition under § 2254. Petitioner later pursued collateral relief in the state courts by filing
his MARs. Although attempts at collateral relief in the state courts 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 did not file his first MAR until October 3, 2011, or nearly
three months after the deadline passed. Attempts at state court collateral relief made after
the § 2244(d)(1) deadline expires do not revive or restart the deadline. Minter v. Beck, 230
F.3d 663, 665 (4th Cir. 2000). The same is true for Petitioner’s attempts to revive his direct
appeal in 2013. If successful, those would have restarted his time to file. See Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009). However, they did not succeed and Petitioner’s
conviction remained final as of July 6, 2011. All of Petitioner’s claims with the exception of
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his argument that he is entitled to resentencing under the 2011 changes to North Carolina
law1 are time barred under § 2244(d)(1)(A) and should be dismissed.
Petitioner’s only response is that the Court should treat the Petition as timely because
“it is obvious that [he has] proceeded diligently” and that “considering [his] pro-se status, it is
apparent that [he] acted in a timely manner.” (Petitioner’s Response [Doc. #12] at 6.)
However, for the reasons set out above, the Court concludes that he proceeded in neither a
diligent nor timely manner as to all but one of his claims. As for his reference to his pro se
status, this could be construed as a request for equitable tolling, which 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)) (emphasis
added). 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); Gray v. Lewis, No. 1:11CV91, 2011 WL
4022787, at *3 (M.D.N.C. Sept. 9, 2011) (unpublished) (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)
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Respondent concedes that this claim is timely in light of the fact that the basis for the claim did not exist
until 2011 and that Petitioner’s subsequent filings seeking collateral review in the state courts sufficiently
tolled the running of the limitations period to render the filing of the claim in this Court timely under
§ 2244(d)(1).
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(Beaty, J., adopting recommendation of Eliason, M.J.) (unpublished), adopted, slip op.
(M.D.N.C. Nov. 4, 2011) (Beaty, C.J.)).
Petitioner’s equitable tolling argument fails,
Respondent’s Motion for Summary Judgment should be granted, and the Petition should be
dismissed as untimely with the exception of his claim that changes to North Carolina’s
sentencing laws in 2011 entitle him to resentencing. The Court will address that claim on its
merits.
Standard of Review
This Court must apply a highly deferential standard of review in connection with
habeas claims “adjudicated on the merits in State court proceedings,” 28 U.S.C. § 2254(d).
More specifically, the Court may not grant relief unless a state court decision on the merits
“was contrary to, or involved an unreasonable application of clearly established Federal law,
as determined by the Supreme Court of the United States; or . . . was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” Id. “Clearly established Federal law” includes only “‘holdings, as opposed to
dicta,’” of the United States Supreme Court. White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(quoting Howes v. Fields, 132 S. Ct. 1181, 1187 (2012)). A state court decision is “contrary
to” United States Supreme Court precedent if the state court decision either “arrives at a
conclusion opposite to that reached by [the United States Supreme] Court on a question of
law” or “confronts a set of facts that are materially indistinguishable from a decision of [the
United States Supreme] Court and nevertheless arrives at a result different” from the United
States Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision
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involves an “unreasonable application” of Supreme Court case law “if the state court
identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably
applies it to the facts of the particular state prisoner’s case.” Id. at 407; see also id. at
409–11 (explaining that “unreasonable” does not mean merely “incorrect” or “erroneous”).
“[E]ven clear error will not suffice.” White, 134 S. Ct. at 1702 (citing Lockyer v. Andrade,
538 U.S. 63, 75–76 (2003)). “Rather, ‘as a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770,
786–787 (2011). Finally, this Court must presume state court findings of fact correct unless
clear and convincing evidence rebuts them. 28 U.S.C. § 2254(e)(1).
Discussion
Petitioner’s sole remaining claim contends that his habitual felon sentence of 151 to
191 months for breaking and entering a vehicle is “disproportionate” in light of subsequent
changes in North Carolina’s sentencing laws. This claim was raised in Petitioner’s second
MAR and denied for a “lack of merit.” (Petition, Exs.) Thus, it is clear that Petitioner
presented the claim to the state courts, the claim was adjudicated on its merits, and the
standard of review set out above applies.
The claim raised in the Petition does not cite any controlling federal law, but instead
refers to the attached second MAR. The second MAR asserts that Petitioner’s sentence is
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“disproportionate” under two state law cases and the United States Supreme Court case of
Graham v. Florida, 560 U.S. 48 (2010). However, even a cursory review of Graham reveals
that it not only does not compel such a conclusion, but that it is inapplicable to Petitioner’s
situation. The Supreme Court held in Graham that a mandatory sentence of life without the
possibility of parole for a juvenile offender who did not commit a homicide was grossly
disproportionate and, therefore, a violation of the United States Constitution’s protection
against cruel and unusual punishment. Id. at 82. However, Petitioner is not a juvenile and
did not receive a sentence of life imprisonment without the possibility of parole. Graham is
not controlling law in his case. More importantly, the decision in Graham cites to cases
which are far more applicable to Petitioner’s case because they involved lengthy sentences
for adult repeat offenders such as Petitioner. See id. at 60 (citing Ewing v. California, 538
U.S. 11 (2003) (holding that a 25-years-to-life sentence for the theft of golf clubs under a
“three strikes” law is constitutional) and Rummel v. Estelle, 445 U.S. 263 (1980) (holding
that life without parole for a third nonviolent felony of obtaining money by false pretenses is
constitutional)). Ewing and Rummel control Petitioner’s case far more than Graham, and
the state court’s denial of his claim was not contrary to, or an unreasonable application of,
those cases. Petitioner cannot meet the high standards of § 2254(d) by relying on Graham.
Petitioner attempts to avoid denial of his claim by altering it somewhat in his
Response. There, he claims that North Carolina’s changing of its habitual felon sentences in
2011 shows that it was aware that the prior sentencing structure, the one under which
Petitioner was sentenced, violated the Constitution. This is simply incorrect. States and the
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federal government frequently raise or lower sentences for various crimes based on many
reasons not related to the constitutionality of the sentence being altered. Nothing suggests
that North Carolina’s decision to change its sentencing in 2011 was related to the
constitutionality of habitual felon sentences.
In fact, as discussed above, Petitioner’s
sentence is constitutional under Ewing and Rummel. Petitioner is not entitled to relief and
his only non-time barred claim should be denied.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for Summary
Judgment [Doc. #8] be granted, that the claims raised in the Petition [Doc. #2] be dismissed
and denied as set out in the body of this Recommendation, and that this action be dismissed.
This, the 22nd day of August, 2014.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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