THOMAS v. SHANAHAN

Filing 15

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 03/31/2015, that the Magistrate Judge's Recommendation (Doc. 12 ) is ADOPTED. FURTHER that Respondent's Motion to Dismiss (Doc. 5 ) is GRANTED, that the ha beas corpus petition (Doc. 1 ) is DENIED, and that this action is DISMISSED. A Judgment dismissing this action will be entered contemporaneously with this Order. Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability is not issued. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID THOMAS,
Petitioner,
v.
FRANK L. PERRY,
Respondent.

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1:13CV427

ORDER
This matter is before this court for review of the
Memorandum Opinion and Recommendation (ARecommendation@) filed on
December 22, 2014, by the Magistrate Judge in accordance with 28
U.S.C. § 636(b).

(Doc. 12.)

In the Recommendation, the

Magistrate Judge recommends that Respondent’s Motion to Dismiss
(Doc. 5) be granted, that the Petition (Doc. 1) be denied, and
that this action be dismissed.

The Recommendation was served on

the parties to this action on December 22, 2014. (Doc. 13.)
Petitioner filed timely objections (Doc. 14) to the
Recommendation.
This court is required to Amake a de novo determination of
those portions of the [Magistrate Judge=s] report or specified
proposed findings or recommendations to which objection is made.@
28 U.S.C. § 636(b)(1).

This court Amay accept, reject, or

modify, in whole or in part, the findings or recommendations

made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.@

Id.

This court has appropriately reviewed the portions of the
Recommendation to which objection was made and has made a
de novo determination which is in accord with the Magistrate
Judge=s Recommendation.

Specifically, this court finds, as the

Magistrate Judge did, that this Petition was not timely filed.
(See Recommendation (Doc. 12) at 6-7.)

In his objections,

Petitioner claims that he has “a valid reason for the time
limitation[] lapse.”

(Petitioner’s Objections (Doc. 14) at 1.)

However, this court has examined the record and Petitioner’s
pleadings for circumstances that would equitably toll the
statute of limitations and has found none.
Petitioner explains that the deficiencies in the indictment
against him made it so that he could not file a timely petition
in state court or that these circumstances should excuse the
time limitation for filing his petition in state court.
id. at 2.)

(See

Petitioner also asserts that he “suffers from

schizophrenia.”

(Id. at 3.)

Despite Petitioner’s claims,

Petitioner has not explained how either of these circumstances
caused him to wait for over two years to file his first Motion
for Appropriate Relief in Durham County Superior Court.

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(See

Recommendation (Doc. 12) at 1-2.)

Although Petitioner has filed

numerous motions in the state courts since 2008, this court
finds Petitioner has not shown that he was “pursuing his rights
diligently” from the date of his conviction in October 2006 to
the date his first Motion for Appropriate Relief was filed in
October 2008, or that Petitioner’s justifications are “some
extraordinary circumstance [that] stood in his way” of his
timely filing.

See Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005); see also United States v. Sosa, 364 F.3d 507, 513 (4th
Cir. 2004) (noting that “federal courts will apply equitable
tolling because of a petitioner's mental condition only in cases
of profound mental incapacity” and that the petitioner in that
case had not “asserted that his mental condition rises to this
level”).

Thus, this court finds that the limitation period

should not be equitably tolled.

Because this court’s de novo

determination is in accord with the Magistrate Judge’s
Recommendation, this court will adopt the Recommendation.
IT IS THEREFORE ORDERED that the Magistrate Judge=s
Recommendation (Doc. 12) is ADOPTED.

IT IS FURTHER ORDERED that

Respondent’s Motion to Dismiss (Doc. 5) is GRANTED, that the
habeas corpus petition (Doc. 1) is DENIED, and that this action
is DISMISSED.

A Judgment dismissing this action will be entered

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contemporaneously with this Order.

Finding no substantial issue

for appeal concerning the denial of a constitutional right
affecting the conviction, nor a debatable procedural ruling, a
certificate of appealability is not issued.
This the 31st day of March, 2015.

_______________________________________
United States District Judge

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