YOW v. HAYES

Filing 10

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 7/3/2013; that Respondents Motion for Summary Judgment, (Doc. 5 ), is GRANTED and the case is DISMISSED with prejudice. There being no substantial showing of the denial of a constitutional right, nor a debatable procedural ruling, a certificate of appealability shall not issue. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GLENN SCOTT YOW,
Petitioner,
v.
DANNY HAYES,
Respondent.

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1:13-CV-283

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
This matter is before the Court on Glenn Scott Yow’s 28 U.S.C. § 2254 petition. He
contends that his Montgomery County Superior Court conviction for habitual impaired driving
was obtained in violation of his constitutional rights. Respondent contends that the petition was
not timely filed and is otherwise without merit. (See Doc. 5.) The Court finds that the petition
was filed outside the one-year limitations period, and, thus, it must be dismissed.
Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §
2244(d), a petitioner has one year in which to file a § 2254 petition, beginning from the date on
which the criminal judgment became final. Id. § 2244(d)(1)(A). Mr. Yow filed a direct appeal
of his conviction, which he withdrew on June 13, 2011. (Doc. 6-4 at 2); see N.C. Gen. Stat. §
15A-1450 (permitting withdrawal of criminal appeal by filing signed written notice with superior
court clerk). Mr. Yow’s case thus became final on June 13, 2011. See, e.g., Letlow v. Sabourin,
No. Civ. 01-0103(LBS), 2003 WL 21919430, at *2 (E.D.N.Y. Apr. 14, 2003) (“Direct review of
[defendant’s] conviction concluded when his appeal was withdrawn.”).

Mr. Yow’s one-year limitations period thus began on June 13, 2011, and ran for thirty-six
days until he filed his first Motion for Appropriate Relief (“MAR”) in state court on July 19,
2011. (See Doc. 6-5 at 2); see Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). The
period was tolled until the state court denied the MAR on August 4, 2011. (See Doc. 6-5.)
Although Mr. Yow apparently mailed a copy of a certiorari petition to the North Carolina
Attorney General’s Office on September 21, 2011, (Doc. 6-6 at 5), he does not appear to have
filed the petition in the Court of Appeals as required by North Carolina law. See N.C. R. App. P.
21(e) (“Petitions for writ of certiorari to review orders of the trial court denying motions for
appropriate relief [in non-capital cases] shall be filed in and determined by the Court of
Appeals.”). Thus, this petition was improperly filed and cannot toll the one-year period of
limitations. See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (noting that a state post-conviction
application is “properly filed” when it complies with state rules concerning form, time limits, and
filing court and office).
Accordingly, Mr. Yow’s one-year period resumed on August 5, 2011, and fully expired
329 days later on Friday, June 29, 2012. Mr. Yow did not place his petition in the prison mailing
system until April 3, 2013, (Doc. 1 at 14); see Houston v. Lack, 487 U.S. 266, 275 (1988)
(deeming prisoners’ pleadings filed when they are delivered to prison authorities for mailing),
well after the expiration of the one-year statute of limitations under the AEDPA.
Mr. Yow’s second Motion for Appropriate Relief, initiated in October 2012, (Doc. 6-7)
did not serve to toll the limitations period because it was initiated after its expiration.
Subsequent motions or petitions cannot breathe new life into an already fully expired limitations
period. See 28 U.S.C. § 2244(d)(2); Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000); see also
Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir. 1999) (declining to toll limitations period during

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pendency of state post-conviction proceeding because it was not filed until after expiration of
limitations period).
None of the statutory exceptions that would delay the one-year statute of limitations
apply in this case. See 28 U.S.C. § 2244(d)(1)(B)-(D). Mr. Yow’s sole claim for relief concerns
alleged ineffective assistance of counsel. He contends that his attorney stipulated to the three
prior convictions alleged in the habitual impaired driving indictment without first advising him
of his rights and failed to inquire and object to the state’s incorrect determination of his prior
record level. Any such ineffective assistance of counsel would have been obvious at the time his
attorney stipulated and failed to object, at the latest when the prior record level worksheet was
submitted and Mr. Yow was sentenced on December 15, 2010. (Doc. 6-3 at 2.); see 28 U.S.C. §
2244(d)(1)(D) (calculating one-year period beginning on “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, 305 (4th Cir. 2008) (holding that time starts under
§ 2244(d)(1)(D) when inmate could have discovered counsel’s allegedly deficient performance
from public sources using due diligence). Thus, Mr. Yow is not entitled to a later limitations
period commencement date on this ground.
Finally, Mr. Yow is not entitled to equitable tolling of the limitations period, as there
were no extraordinary circumstances beyond his control that prevented from filing on time. See
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). In his petition, Mr. Yow attempts to excuse his
untimely petition by stating that failure to review his claim would be a fundamental miscarriage
of justice and that the factual or legal basis for his claim could not have been discovered earlier
by the exercise of due diligence. Mr. Yow’s conclusory miscarriage-of-justice contention is
insufficient to excuse his untimely filing. As stated above, the factual predicate for Mr. Yow’s

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claim could have been discovered by the exercise of due diligence as early as his December 15,
2010, sentencing. As to his contention that he could not have discovered the legal basis for his
claim earlier, “even in the case of an unrepresented prisoner, ignorance of the law is not a basis
for equitable tolling.” See United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Because
Mr. Yow’s limitations period expired on June 29, 2012, and he is not entitled to equitable tolling,
his April 3, 2013, § 2254 petition is untimely.
It is therefore ORDERED and ADJUDGED that Respondent’s Motion for Summary
Judgment, (Doc. 5), is GRANTED and the case is DISMISSED with prejudice. There being no
substantial showing of the denial of a constitutional right, nor a debatable procedural ruling, a
certificate of appealability shall not issue.
This the 3rd day of July, 2013.

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UNITED STATES DISTRICT JUDGE

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