THOMAS v. SHANAHAN
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 12/22/2014. RECOMMENDED that Respondent's Motion to Dismiss (Docket Entry 10 ) be granted, the Petition (Docket Entry 2 ) be denied, and that Judgment be entered dismissing this action.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID THOMAS,
Petitioner,
v.
FRANK L. PERRY,1
Respondent.
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1:13CV427
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 1.)
County,
(Docket
On October 2, 2006, in the Superior Court of Durham
Petitioner
pled
guilty
to
attempted
robbery
with
a
dangerous weapon, assault with a deadly weapon with intent to kill
inflicting serious injury, and robbery with a dangerous weapon, in
cases 05 CRS 53195, 53197, and 53394, and received consecutive
sentences of 80 to 105 months and 71 to 95 months of imprisonment.
(Id., ¶¶ 1-6; Docket Entry 6-3.)
He did not appeal.2
1
Consistent with Rule 2(a) of the Rules Governing Section
2254 Cases, the Petition in this case originally named Kieran J.
Shanahan, then-Secretary of the North Carolina Department of Public
Safety, as Respondent. (Docket Entry 1.) Frank L. Perry currently
serves in that position, see https://www.ncdps.gov/Index2.cfm?a
=000003,000008,000153,002681 (last visited Dec. 19, 2014), and by
operation of Federal Rule of Civil Procedure 25(d) (applicable to
this proceeding pursuant to Rule 12 of the Rules Governing Section
2254 Cases), now appears as Respondent.
2
Petitioner checked the box indicating that he appealed his
conviction (Docket Entry 1, ¶ 8), but his subsequent description
refers to a collateral challenge, not a direct appeal (id., ¶ 9).
On October 20, 2008, Petitioner filed a Motion for Appropriate
Relief (“MAR”) in the trial court.3
On January 12, 2010, the
trial court summarily denied Petitioner’s MAR.4
7.)
(Docket Entry 6-
On December 17, 2010, Petitioner filed a petition for a writ
of habeas corpus with the trial court (Docket Entry 6-8), and the
trial court summarily denied the petition on January 12, 2011
(Docket Entry 7-1).
Immediately thereafter - January 31, 2011 -
Petitioner filed a second MAR with the trial court.
7-2.)
(Docket Entry
While awaiting a ruling on his second MAR, Petitioner
petitioned for a writ of mandamus with the North Carolina Court of
Appeals - on June 8, 2012 - requesting the Court of Appeals to
order the trial court to rule on his pending MAR (Docket Entry 7-
3
Neither party included a copy of the first MAR in the
record. Respondent states that he could not locate a copy of the
MAR. (See Docket Entry 6 at 1 n.1.) However, Petitioner attached
a copy of the certificate of service for the MAR to a subsequently
filed mandamus petition to the North Carolina Court of Appeals and
Respondent included that certificate in the record.
(See id.;
Docket Entry 6-6.) The certificate of service lists October 20,
2008, as the filing date. (Docket Entry 6-6 at 2.) Furthermore,
in the Order denying the MAR, the court notes that Petitioner filed
it on October 20, 2008. (See Docket Entry 6-7.)
4
In response to Respondent’s instant Motion, Petitioner
included a copy of a Motion for a Writ of Mandamus he allegedly
filed with the North Carolina Court of Appeals in August of 2009
requesting an order directing the trial court to rule on his thenpending MAR.
(Docket Entry 9 at 22-24.)
The record does not
document the North Carolina Court of Appeal’s action on that
Motion.
2
3), which the North Carolina Court of Appeals denied on June 15,
2012 (Docket Entry 7-5).5
Petitioner then filed a third MAR with the trial court on June
25, 2012 (Docket Entry 7-6), which the court summarily denied on
July 5, 2012 (Docket Entry 7-7).
Petitioner then filed a fourth
MAR with the trial court on August 6, 2012 (Docket Entry 7-8),
which the court summarily denied on August 16, 2012 (Docket Entry
7-9).
On September 7, 2012, Petitioner petitioned for a writ of
certiorari with the North Carolina Court of Appeals, and the court
denied the petition on September 21, 2012.
On
October
8,
2012,6
Petitioner
filed
(Docket Entry 7-10.)
a
“Notice
of
Appeal
Presenting Constitutional Questions” to the North Carolina Supreme
Court (Docket Entry 7-11), which dismissed the “Notice” on December
12, 2012 (Docket Entry 7-12).7
Finally, Petitioner signed his Petition, under penalty of
perjury, and dated it for mailing on May 22, 2013 (Docket Entry 1
at 15), and the Court stamped and filed the Petition on May 30,
5
The record does not reflect when or if the trial court ever
ruled on Petitioner’s second MAR.
6
Although the court stamped the “Notice” as received on
October 8, 2012, they subsequently referred to it as filed on
October 9, 2012. (See Docket Entry 7-11 at 2; Docket Entry 7-12 at
2.) Regardless, the discrepancy does not affect the undersigned’s
recommendation.
7
Petitioner’s “Notice” appealed the denial of his petition
for a writ of certiorari from the North Carolina Court of Appeals.
(Docket Entry 7-11.)
3
2013 (Docket Entry 1 at 1).8
Respondent has moved to dismiss the
Petition on statute of limitation grounds (Docket Entry 5), and
Petitioner filed a response to Respondent’s instant Motion (Docket
Entry 9).
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: (1)
“Denial of [d]ue [p]rocess by using prior [j]uvenile conviction to
erroneously
[i]ncrease
[Petitioner’s]
prior
[r]ecord
[l]evel”
(Docket Entry 1 at 5); (2) “The [t]rial court lacked [j]urisdiction
to [i]mpose [j]udgment because [Petitioner’s] [i]ndictment were
[sic] defective thus violating the Due Process Clause of the U.S.
Constitution”
(id.
at
7);
and
(3)
“Denial
of
[e]ffective
[a]ssistance of counsel in violation of the 6th Amendment” (id. at
8).
Discussion
Respondent moves for dismissal of the Petition on the grounds
that
Petitioner
filed
his
Petition
outside
limitation period, see 28 U.S.C. § 2244(d)(1).
3-5.)
of
the
one-year
(Docket Entry 6 at
In order to assess Respondent’s statute of limitations
argument, the undersigned must first determine when Petitioner’s
8
Under Rule 3(d) of the Rules Governing Section 2254 Cases in
United States District Courts, the Court deems the instant Petition
filed on May 22, 2013, the date Petitioner signed the Petition
(under penalty of perjury) as submitted to prison authorities.
(See Docket Entry 1 at 15.)
4
one-year period to file his Section 2254 Petition commenced.
The
United
has
States
Court
of
Appeals
for
the
Fourth
Circuit
explained:
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).
Neither
Petitioner nor Respondent claim that subparagraphs (B), (C), or (D)
apply in this situation.
(See Docket Entries 6, 9.)
Thus, the
question becomes when, under subparagraph (A), did Petitioner’s
limitation period begin and end?
Under subparagraph (A), Petitioner’s case became final on
October 2, 2006 - the date of his judgment and conviction.
North
Carolina limits the rights of individuals who pled guilty to appeal
5
their
convictions.
See
N.C.
Gen.
Stat.
§
15A-1444
(2006).
Specifically, if an individual’s minimum sentence falls within or
below the presumptive range of sentences, then the individual
cannot file an appeal as a matter of right.
Id.
Because the
minimum terms of Petitioner’s prison sentences of 80 to 105 and 71
to
95
months
fell
within
the
mitigated
range
of
sentences,
Petitioner could not file an appeal as a matter of right.
at §§ 15A-1444(a1), 15A-1340.17 (2006).
See id.
Thus, Petitioner’s case
became final, for purposes of calculating the limitation period, on
October 2, 2006.
See Gonzalez v. Thaler, __ U.S. __, __, 132 S.Ct.
641, 654-55 (2012) (holding that a petitioner’s case becomes final
when the
time
for
pursuing direct
review expires);
see also
Hairston v. Beck, 345 F. Supp. 2d. 535, 538 (M.D.N.C. 2004)
(finding that, because the petitioner did not have a right to
appeal, the
limitation
period
ran
from
the day
of
judgment)
(Osteen, J., adopting the recommendation of Dixon, M.J.).9
The
one-year limitation
its
period
ran
from
October
2, 2006,
to
expiration on October 2, 2007.
Although Petitioner filed numerous MARs in state court, he
filed the MARs after the limitation period had run, and the belated
9
Even if Petitioner had the opportunity to appeal, the North
Carolina Rules of Appellate Procedure require a notice of appeal
within fourteen days of judgment. N.C.R. App. P. 4(a)(2). Thus,
Petitioner’s ability to appeal would have expired October 16, 2006,
and the limitations period would have expired October 16, 2007 long before Petitioner filed his first MAR or this Petition.
6
filings could not revive the already expired one-year limitation
period.
See Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000)
(finding that state filings made after the federal limitations
period do not restart or revive the federal limitations period).
Here, Petitioner did not file his Petition until almost six years
after the limitations period had run.
Therefore, Petitioner filed
his Petition untimely, outside of the limitations period.
Despite the Petition’s untimeliness, Petitioner contends that
the Court ought to address the merits of his Petition by tolling
the limitations period.
(Docket Entry 9 at 3.)
Although the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
provides for a one-year statute of limitations for habeas claims,
see 28 U.S.C. § 2244(d)(1), a court can equitably toll the one-year
limitations period, see Holland v. Florida, 560 U.S. 631, 634
(2010).
that
Equitable tolling requires that Petitioner demonstrate
(1)
he
has
diligently
pursued
his
rights,
and
(2)
extraordinary circumstances prevented a timely filing. Id. at 649.
Equitable tolling requires a case by case analysis. Id. at 649-50.
In
tolling.
this
case,
Petitioner
makes
a
fruitless
request
for
Petitioner argues that, because he had to move the state
courts to rule on his MARs, this Court should not count that time
against him; however, Petitioner did not file his MARs until after
the one-year limitation period had elapsed.
7
Thus, the state
court’s failure to timely address his MARs would not have affected
the timeliness of his Petition.
IT
IS
THEREFORE
RECOMMENDED
that
Respondent’s
Motion
to
Dismiss (Docket Entry 10) be granted, the Petition (Docket Entry 2)
be denied, and that Judgment be entered dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 22, 2014
8
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