JESSUP v. DANIELS

Filing 12

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 04/14/2014, that Petitioner's Motion to Voluntarily Dismiss (Docket Entry 10 ) be DENIED, Respondent's Motion for Summary Judgment (Docket Entry 6 ) be GRANTED, that the Petition (Docket Entry 1 ) be DISMISSED, and that Judgment be entered dismissing this action.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMES KEVIN JESSUP,

Petitioner,
v
FAYE DANIELS,

Respondent.

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t:13CY607

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisonet of the State of Notth Carohna, seeks a wtit of habeas corpus
pursuant to 28 U.S.C. S 2254. Q)ocket Entry

1.) Respondent has filed an Answet (Docket

Entry 5) and a Motion for Summary Judgment (Docket Entry

6).

Petitionet was notified

pocket Entry 9) of his right to reply and warned of the potential consequences of faiüng to
do so. Petitioner then filed a "Motion to Dismiss Petition fot !Ørit of Habeas Cotpus"
Q)ocket Entry 10), which Respondent opposed by filing a Response (Docket Entry 11).

Background
On September 15, 2008 Petitionet was convicted after a jury trial in Supetiot Coutt,
Fotsyth County of first-degree murdet, tobbery with a dangerous weapon, and two counts

of larceny of a firearm, in

cases 06 CRS 59076 and 59078-82. (Docket

was sentenced to life impdsonment without patole. (1/. S 3.) The

Appeals found

Etttry 1, $$ 1-6.) He

Notth Catolina Coutt of

no error in Petitionet's criminal fudgment on Match 16, 201.0.

Clodfelnr dz Jessap,203

N.C. App. 60, 691 S.E.2d 22

QvLarch

76,2070),

State

u.

reuiew denied and appeal

disnired, 364 N.C. 437, 702 S.E.2d 496 (Oct.
discretionary review, and a notice

of

appeal,

7, 201,0). Petitioner filed a petìtion for

in the Supteme Coutt of North Carohna, which

wete denied and dismissed, respectively, on October7,201.0. (Id.) On Octobet 10,201'L,
Petitionet filed a motion for appropdate telief ("MAR") in Supedot Court, Forsyth County,

which was denied on July 17, 201.2. (Docket Entty 8, Exs. 8-9.) On October 1.9, 201.2,
Petitioner filed a petition fot writ of certiorari in the Notth Carohna Coutt of Appeals,
seeking teview of the denial of his MAR, and it was denied on Novembet 1, 201.2. (Id.,Exs.
1,1,-1,2.)

Petitioner filed a second MAR in Supetior Coutt, Forsyth County on May "1,6,2073,

which was denied on June 4,2013. (1/., Exs. 1,3-1,4.) The instant Petition was signed and
dated as ofJuly 12,2073 and filed onJuly 23,2073. (Docket

Enry

1.)1

Petitioner's Claims
Petitionet raises

fout

claims,

all of which

allege violations

of his Fourteenth

Amendment dght of due process, because: (1) the trial court parttally redacted a stâtement

without a limiting instruction, Q) the ttial court allowed an insufficiently redacted statement

of a co-defendant to be used at a joint trial, (3) the tdal fudge failed to disqualiSr himself

due

to personal and families ties, and (a) the prosecutor failed to prove beyond a teasonable
doubt each element of frst-degtee murder and the trial court failed to insttuct the jury on
the elements of the offense. (Id. S 1,2.)

t Under Rule 3(d) of the Rules Govetning Section 2254 Cases in United States District Coutts, the
Court deems the instant Petition filed onJuly 72,201,3, the date Petitioner sþed the Petition (undet
penalty of perjury) as submitted to ptison authodties. (Docket E try 1 *1'4.)
2

Discussion
Respondent requests dismissal on the ground that the Petition was fìled beyond the
one-yeaÍ limitation pedod imposed by 28 U.S.C. S 2244(d)(1) and argues,

that Petitioner's claims lack

merit.

(Docket Entry

Respondent's limitation argument, the Court

8 at

5-'l-.2.)

in the alternative,

It ordet to assess

ftst must detetmine when Petitionet's

one-year

pedod to file his $ 2254 petition commenced. In this regard, the United States Cout of
Appeals fot the Foutth Circuit has explained that:

Under S 2244(d)(1XÐ-P), the one-yeat limitation pedod
to run fron the latest of several potential starting dates:

begins

judgment bemne fnal fu the conclasion of direct
reaiew or the expiration of the tine þr seeking wch reuieu,

(A)

the date on which

the

(B) the date on which the impediment to filing an application
cteated by State action in violation of the Constitution ot laws of
the United States is temoved, if the applicant was prevented
from filing by such State action;

(C) the date on which the constitutional dght asserted was

initially tecognized by the Supreme Coutt, if the tþht has been
newly tecognized by the Supteme Court and made tettoactively
applicable to cases on collateral teview; ot

p)

the date on which the factual ptedicate of the claim ot claims
presented could have been discovered thtough the exetcise of
due diligence.
Green u. Joltnson,515

F.3d 290,303-04 (4thcir. 2008) (emphasis added). The recotd does not

teveal any basis fot concluding that subpatagrapht (B)-@) of

S

2244(d)(1) apply hete.

Under subparagraph (Ð, Petitioner's one-year limitation period cofiunenced on "the

date on which the judgment became final by the conclusion
expiration of the time for seeking such teview." 28 U.S.C.

J

S

of

dfuect review

ot the

2244(d)(1)(,\). The Court must

therefore ascertain when direct teview (or the time fot seeking direct teview) of Petitioner's

underþing conviction(s) ended. Here, the

Notth

Carchna Coutt

of

Appeals afftmed

Petitioner's cdminal convictions on March 76,201.0. Petitioner's convictions thus became

final on ÏØednesday, Jantary 5, 201.1.,90 days after the Octobet 7, 201'0 decision of the
Supreme Court of

Notth

dismissing his notice

Caroltna denying Petitionet's petition

of appeal.

1,076 Q003) (holding that

See

"[flinahq

fot disctetionary teview and

Clry u. lJnìted State¡ 537 U.S. 522, 527, 1'23 S.Ct. 1'072,
attaches when this Coutt

afftms a conviction on the

medts on clirect review ot denies a petition for a writ of certiotati, or when the time fot filing

a

cerdrorarr

petition expires." (intetnal citations omitted));

see also

Sup. Ct. R. 13.1 (allowing

petitioners 90 days after highest state appellate coutt's denial to file for wtit of cetiotari)'

Petitionet's year to file thus began to run on Januaty 5, 20'l'1' and tan fot 278 days

until he filed his frst MAR on October 1,0,2071..

See

28 U.S.C. S 2244(dX2) ("The time

duting which a propedy filed application for State post-conviction of other collateral review

with tespect to the pettinent judgment ot claim is pending shall not be counted towatd any
pedod of limitation undet this subsection.") The limitation petiod tesumed on Novembet
201,2

(tbe day the

Norh Carclt¡a

1,

Court of ,A.ppeals denied Petitionet's petition fot writ of

certiorari seeking teview of the supedor court's denial of his MAR) and expired eighty-seven
days later on Monday, January 28, 2073. See id. Because Petitionet frled his federal habeas

Petition on July 1.2,201.3, it is almost six months late. Petitioner's second MAR, filed on
May 1.6,201,3 was not sufficient to toll the one-yeat limitations period. This is because state

filings made after the federal Limitations pedod has passed do not restart ot revive the filing

period.

See

Minter

u.

Beck,230 F.3d 663, 665 (4th Cir. 2000).

4

Petitioner does not dispute the fotegoing time-line, which is essentially consistent
u¡ith the position set forth in Respondent's Motion for Summaty Judgment' @ocket E.ttty
6 at 5-1,2.) The United States Supreme Court has tecognized that the doctrine of equitable

tolling applies to the time bar set fotth in Section 2244.

See

Holland u. Florida,560 U.S. 631,

648,1,30 5.Ct.2549,2562 (2010). Equitable tolling may excuse an otherwise untimely filing

when a petitioner "shows '(1) that he has been putsuing his dghts diligently, and Q) that
some extraordinary circumstance stood in his way' and ptevented timely
Pace u.

filing." 1/. (quoting

DiGaglielno,544 U.S. 408, 418,1.25 S.Ct. 1807 (2005). However, Petitioner has not

made any such afgument and none is appatent on the face of the pleadings.

Instead, rather than oppose Petitionet's Motion

fot Summary Judgment (Docket

E.rtry 6), Petitioner has filed a half-page "Motion to Dismiss Petition fot Wtit of Habeas

Corpus." In it, Petitioner states, "laffter futthet teview Petitionet agrees with Respondent
that he has not exhausted all claims in State Coutt as tequited and now wishes to voluntatily
dismiss his Habeas Petition

until futher notice." (Docket Entry

Federal Rules

of Civil Procedure does ptovide fot voluntary

circumstances.

,-1¿¿

Cases apply

to

10.)

Rule 41 of the

dismissal undet certain

Fed. R. Civ. P. 41,(a). And, in genetal, the Rules Governing Sectton 2254

cases brought undet Section 2254. J¿¿ Rule 1(a), Rules Governing Sect.2254

Cases. Howevet,

"[t]he Federal Rules of Civil Procedute, to the extent that they are not

inconsistent with any statutory provisions

of fthe Rules Govetning Section 2254 Cases], may

be applied to a proceeding under fthe Rules Goveming Section 2254 Cases]." Rule L2, Rules

5

Govetning Sect.2254 Cases. Numerous courts have tteâted Rule 41 as appltcable to actions
undet Section 2254 anddenied voluntary dismissal undet similat citcumstances.2

More specifically, Rule 41,(^)(1) ptovides that a ptaintiff may voluntatily dismiss an
acrion without a court order by filing a notice of dismissal befote the opposing party fìles an
answer or a motion

for summary judgment ot if the patties have stipulated to the dismissal

in writing. Rule 41(a)(1) is not applicable hete howevet. This is because Respondent

has

filed both an A.nswer (Docket Er,try 5) and a Motion fot Summary Judgment (Docket Entry

6)

and, as demonstrated

in het Response

(Docket

Ettry 11) to the Motion to

Dismiss

(Docket Entry 10), Respondent is unwilling to stipulate to a dismissal in writing.

But this does not end the analysis. Rule 41(a)(2) states that, except as provided in
Rule 41(a)(1), an action may be dismissed at the plaintiffs request only by court otdet'
"Since Rule 41(a)(2) only applies when an answet

been filed by the defendants, the mere filing

ot a motion fot summary iudgment

of an answer ot a motion for
*

has

summalT

Civil Action No. 9:07-cv-00172-RBH , 2008 WL 269505, 4-5 (D.S,C.
Aprl,29-,2009) (unpublished) (denying the petitioner's motion fot voluntary dismissal whete fedetal
hab"", petitioner wls cleatly time-barted); Black. u. Parsons,3:1'2-CY-286-RJC, 201'3 WL 566856, at
*3 ('W.D.N.C. Feb. 1,3,201,3) (unpublished) (same); Fountain u. Fomiss, No. 3:12-cv-02477-JHH*2 (1.{.D.-,P,la. Jan. 25,201,3) (unpublished) (concluding that denial of the
Jp;ò,2013 WL 360261,,
(tme-barted federal habeas petition was ProPer because
þetitionet's motion to voluntatily withdraw a
iespondent "demonstrated the absence of any right to futthet review" and because "[t]o petmit a
disLissal without prejud.ice is not fatt to the tespondents or justified under the circumstances");
*3 (D.S.C. Äug. 8,
Føewell u. Cartledge,^Cioil A"tion No. 4:1,7-cv-02757-RBH, 2012WL 3260322, at
2012) $npublished) ('Petitionet's [fedetal habeas] petition is untimely. Gtanting Petitionet's
motion to dismiss without ptejudice would allow him to avoid summary iudgment on the question
of untimeliness and delay the inevitable. Respondent's fifty-one-page motion for summary
judgment shows a considerable effot in tesponding to the claims assetted in his petition, and
Þ.tition", waited nearþ two-months after the motion to make his motion to dismiss. The petition is
untimely now, and it will remain untimely if it is dismissed without ptejudice- .The issue must be
decided with finality, a significant policy behind the federal habeas statute of limrtations.") quoting
v/illiansu.Tallor,sár)v.s.+20,436,120S.Ct. 1.479,7490 (2000) ('Eh.AntiterorismandEffective
Death Penaltl' Act's] purpose [is] to further the pdnciples of. comity,fnalit1, and federalism.").

'

Srr, e.g., Ganbrell u. BaqTfe,

6

¡udgment could not, without more, be a basis fot refusing to dismiss without ptejudice."
Andes u. Ver¡ant Corþ.,788 F.2d 1.033,'1,036 n.4 (4th Cir. 1986).

A motion to dismiss without

prejudice under Rule 41(a)(2) should not be denied unless "substantial pteiudice" is shown.

Id. at 1036. Also,

the "prospect of a second lawsuit" does not necessatily give tise to such

ptejudice. Daui¡ u. USX C0rp.,81.9 F.2d 1.270,1,274 (4th Cir. 19S7). In determining whethet

to

grzLnt

a motion for dismissal without prejudice undet Rule 41(a)Q), u coutt should

consider the following factors: "(1) the opposing party's effott and expense in ptepadng fot

tÀal Q) excessive delay or lack of diligence on the part of the movant; (3) insuffìcient
explanation
Kroger Ca,,

of the need for a dismissal; and (4) the present stage of litigation."

Hobbs

u.

No.98-1831, 1999 ìØL 156045,^t*1. (4th Cit. Match 23,1,999). "These factots

are not exclusive, however, and any othet televant factors should be consideted by the
district court depending on the circumstances of the case." Id.

In the ptesent case, the undetsigned is of the opinion that the relevant factots
petinent to this proceeding weigh against the gtanting of Petitionet's motion. In teaching
this conclusion, the undetsigned has treated no single factor as dispositive, but has instead
considered them

in totality. Factors one, two, and four can be dispensed with

relatively

quickly, while factor three tequites deepet considetation.

First, tegarding the expense associated u¡ith the ptoceeding, the Respondent
ab.eady expended

has

time and expense in teviewing the case, pteparing an Answet (Docket

Etttry 5), a Motion for Summary Judgment (Docket Etttty 6), and a twenty-eight-page Brief
(Docket E.rtry 8). Respondent has also assembled seventeen exhibits

in

support of its

Motion for Summary Judgment @ocket Entry 6), including a lengthy tdal ttansctipt.
7

pocket Entty 8, Exs. 1-17.) Nevetheless, there has been no discovery in this
Consequently, this factor tips

case.

in Respondent's favot, though only somewhat. As to factor

rwo, the diligence of the movânt, Petitionet filed his Petition (Docket E.rtty 1) in July 201'3,
Respondent filed his Answer (Docket E.rtry 5) and Motion fot Summary Judgment (Docket

E.rtry 6)

in September, and Petitioner

(Docket Entry

10.)

moved

to

dismiss the instant action

Consequently, Petitioner has been reasonably cliligent

in

Octobet

in moving

to

v¡ithdtaw his action. Nevertheless, as explained, Petitioner is toughly six months out of time
pursuant to the AEDPA's pedod of limitations and thus has not been diligent in this regatd.

This factor thetefore also tips in Respondent's favor.3 As to the foutth factor, the stage of
litigation, Respondent did have a dispositive motion (the Motion fot Summary Judgment)
pending at the time Petitioner filed the present motion to dismiss. This factot also tips in
Respondent's favot.

As

show

to

factor three,

it

also tips in Respondent's favot, because Petitionet has failed to

a suffìcient explanation fot

petitioner's explanation amounts
agrees

voluntary dismissal without pteiudice'

As

to a single sentence: "Aftet futthet review

with Respondent that he has not exhausted all claims in State Coutt

noted,

Petitionet

as tequired and

now wishes to voluntarily dismiss his Habeas Petition until futther notice." (Docket E.ttty

10.) It is not entirely clear what Petitioner means by this. Petitioner does not explain which

of his

claims he has failed

to

exhaust,

nof how he intends to exhaust them. In

,

fact,

petitioner,s lack of due cliligence in frling his fedetal habeas petition strikes the undetsþed as
televant under this factor, espãcially given that the Fouth Circuit has counseled that the fout factot
analysis is not exhaustive uttã thut any additional televant factot should be considered. However,
if the diligence factor.was only limit"d to the consideration of the timeliness of a motion to
"rr.r,
voluntadly -itli.lr"-, and this factoi were to tip in Petitioner's flot, the ovetall calculus would still
not be suificiently welghty to change the undetsþed's overall conclusion teached on this issue.
8

Petitioner does not explicitly asseft that he intends to fetufn to state coutt to pufsue âny
avenues he believes might still be open
d,ismissal

to him, ot even explicitly assert thzt he seeks

without prejudice, though Respondent presumes that this is Petitionet's intention.

Petitioner's conclusion that some

ot all of his claims ate unexhausted is also

inconsistent with his previous position and wrth Respondent's

position.

Specifically,

petitioner asserted in his Petition that thtee out of his fout claims wete exhausted. (Docket

Entry 1, S L2, Grounds One, Two, and Fout designated "Clairn Exhausted.") Petitionet did
not assert one way or the other whether his remaining claim tegarding allegations of iudicial
misconduct u/as exhausted. Yet, the procedural history Petitioner describes in his Petition
amounts to an assertion that his temaining claim was exhausted. This is because Petitionet
indicates that this issue was presented in a MAR to the state ttial court and that he took the
denial of that MAR to the

Notth Catoltna Coutt of Appeals, whete it too was denied.

(Id',

Ground Thtee (u)-(.).)o
Likewise, the notion that Petitioner and Respondent ate in agteement on the issue

of

exhaustion is suspect. Respondent has consistently denied that Petitioner has any temaining

state couft temedies, asserting that Petitioner's claims ate eithet alf:eady exhausted or
unexhausted but procedurally

batted. (Docket Entties 6 and 1"1'.) Respondent has not

argued at any point that this matrer should be dismissed without pteiudice so that Petitioner

may pursue further state couft remedies. Thus, Petitioner's implicit assertion that he and
Respondent arc of one mind tegatding his need to fetufn to state couft to pufsue state couft

In Noth Carolina,a petitioner may satisfy the exhaustion tequirement of section 2254by directly
appealing his convictioã to the North Caroltna Court of -A,ppeals and then petitioning the Supreme
Court of North Caroina for disctetiott^ty review ot by filing a MAR and petitioning the Notth
CarolinaCourtof Appeals forawritof cettiorati, J¿¿N.C. Gen. Stat. SS 7A-27,7A-31',15/'-1422'

a

9

remedies is not suppotted by the pleadings. Moteovet, nothing

in the pleadings

suggests

that Petitioner was unable to taise these issues in state couft and it is not apparent ftom the
pleadings and exhibits which,
fact,

it

if

any, state court ptoceedings remain open to Petitionet. In

appeâÍs that further âttempts at exhaustion would be

futile. ,\nd, of particular

importance in this case, dismissal without ptejudice at this stage would not prevent any of
Petitioner's claims ftom being batred by the statute of limitations. Petitionet's claims are
alreadl time batred and

will remain time-bared'

There are additional points of law to consider.

" '[A] motion to voluntarily dismiss

under Rule 41(a)(2) should be denied when a plainttff seeks
advetse tesult, and that 'denial
judgment is imminent.'

"

of voluntary

dismissal

to citcumvent an expected

is apptoptiate whete summary

I{esari u. Ta1/0r,806 F. S,rpp. 2d 848 (E'D. Ya. 2011) (quoting

Skinner u. First. Am. Bank of Va.,

No. 93-2493,

1.995

WL

1995) (citing Dauì¡ u. USX C0rp.,81.9 F.2d at 7274). Also,
habeas petitioner is entitled

507264, at

*2 (4th Cir. Aug' 28,

in detetmining whethet ot not a

to a voluntary dismissal without preiudice, fedetal courts must

"ensure that the petitioner's ability

to

present claims

of

constitutional violations is not

abddged merely because the petitioner has unwittingly fallen into a ptocedutal ttap created
by the intricacies of habeas corpus law." Clark u. Tangl,13 F.3d

1'407

,1409 (10th Cn'

1,993)'

Here, Petitioner voluntarily sought to have this Coutt adjudicate whether the finality

of his

state judgment should be disturbed through this fedetal habeas ptoceeding. The

Court ordered the Respondent to fi.le an answet or response to Petitionet's Secion 2254

Petition. pocket Entry 4.) In the Answer pocket Ettry 5) and Motion fot
Judgment pocket

Ertry 6), Respondent,

as is het dght

10

to do,

Summary

assetted the afñtmatjve

defense of the statute of limitations. That is, Respondent cleady ptessed the tights that are
expressly set forth

in Section 2244(d)(1)(4,) þroviding for the one-year statute of limitation

running from the date Petitioner's state judgment became fìnal). To dismiss this proceeding

in order to futther exhaust state temedies (if that is indeed what Petitionet is ttyitg to do)
would serve no purpose, because even if Petitioner could teturn to state couft (which

seems

unlikely, because Petitionet's claims are eithet akeady exhausted ot subiect to the procedutal
bar), this federal action is already time-barred. This is not an instance of Petitionet falling
into a procedural trap generated by the inúicacies of habeas law but an attemPt to withdraw
an action that

is-and will temain-time bared. '\

dismissal without pteiudice would also

permit Petitioner to avoid an imminent dismissal with pteiudice in a case he initiated

Petitioner raises these issues
against

a

in a second habeas petition-force

clearly time-barred claim

Respondent

defend

a second time. The bettet course here is to

Petitioner's Motion to Dismiss. (Docket Entty 10.)

See, e.5.,

IT IS THEREFORE RECOMMENDED

deny

Black,2013 WL 566856, at x3;

Fountain,2Ol3WL 360267; Fuewell,201.2WL 3260322, atx3; Ganbrell,2008 W-L 269505

Dismiss @ocket Etttry 10) be

to

and-if

,*

4-5.

that Petitioner's Motion to Voluntatily

DENIED, Respondent's Motion for Summary

Judgment

pocket E.rtry 6) be GRANTED, that the Petition pocket Etttty 1) be DISMISSED, and
thatJudgment be enteted dismissing this action.

LWúçt+r
St*me Mqistnteludp

Apdl 14,201.4
Dutham, North Carohna
1,1