ROGERS v. SHANAHAN

Filing 20

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 12/16/2014 as set out herein. RECOMMENDED that the Court grant Respondent's Motion to Dismiss (Docket Entry 10 ), that the Court deny the Petition (Docket Entry 2 ), and that Judgment be entered dismissing this action.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
REGINALD LEE ROGERS, SR.,
Petitioner,
v.
FRANK L. PERRY,
Respondent.

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1:13CV738

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 2.)

(Docket

On August 17, 2007, in the Superior Court of Davidson

County, a jury found Petitioner guilty of second-degree rape,
second-degree sex offense, habitual misdemeanor assault, assault on
a female, and breaking and entering, in cases 05 CRS 61448-49, 51
and 07 CRS 5067, and Petitioner received a sentence of 133 to 169
months of imprisonment.

(Id., ¶¶ 1-6.)1

Petitioner (through

appointed counsel) appealed his convictions to the North Carolina
Court of Appeals (id., ¶ 9) and that court unanimously denied his
appeal, State v. Rogers, 194 N.C. App. 131, 669 S.E.2d 77 (2008).
Petitioner then filed a petition for discretionary review (“PDR”)
with the North Carolina Supreme Court (Docket Entry 2, ¶ 9(g)),
which that court denied on March 19, 2009 (id., ¶ 9(g)(3); Docket

1

The record does not appear to contain a copy of the verdict
forms and judgment for Petitioner.

Entry 11-3).

Petitioner did not thereafter file a petition for

certiorari in the United States Supreme Court.

(Docket Entry 2,

¶ 9(h).)
After his direct appeal, Petitioner filed a slew of other
motions in state court, beginning with a Motion for Appropriate
Relief (“MAR”) in the North Carolina Court of Appeals on May 18,
2009 (Docket Entry 11-4), which the court dismissed on May 28,
2009, without prejudice to allow filing in the Davidson County
Superior

Court

(Docket

Entry

11-6).

On

December

10,

2009,

Petitioner filed a second MAR in the North Carolina Supreme Court,
which the court dismissed without prejudice on March 11, 2010.
(Docket Entry 11-7.)

On June 21, 2010, Petitioner mailed a third

MAR to the North Carolina Court of Appeals, which that court
stamped and filed on June 24, 2010 (Docket Entry 11-8), and denied
on July 12, 2010 (Docket Entry 11-10).

Petitioner immediately

thereafter - July 27, 2010 - filed a fourth MAR and a PDR with the
North Carolina Court of Appeals (Docket Entries 12-1 - 12-4), which
the court dismissed without prejudice on August 12, 2010 (Docket
Entry 12-6).
Later, on April 3, 2013, Petitioner filed a fifth MAR in the
Superior Court of Davidson County, and that court summarily denied
his motion on April, 12, 2013.
Entry

12-7.)

Petitioner

(Docket Entry 2, ¶ 11(a); Docket

then

filed

a

petition

for

writ

of

certiorari with the North Carolina Court of Appeals seeking review

2

of the denial of his fifth MAR on May 15, 2013.
13-1.)2

(Docket Entry

On June 6, 2013, the North Carolina Court of Appeals

denied his petition.

(Docket Entry 13-3.)

On April 16, 2013,

Petitioner petitioned the North Carolina Supreme Court for a writ
of

certiorari

to

review

the

Davidson

County

Superior

Court

decision, and that court denied the petition on June 12, 2013.
(Docket Entry 13-4.)

Also on April 29, 2013, Petitioner filed a

Motion for Severance with the North Carolina Supreme Court that the
court dismissed on June 12, 2013. (Docket Entry 2, ¶ 11(c); Docket
Entry 13-6).3
Finally, Petitioner signed his Petition, under penalty of
perjury, and dated it for mailing on August 27, 2013 (Docket Entry
2 at 15), and the Court stamped and filed it on August 30, 2013
(Docket Entry 1 at 1; Docket Entry 2 at 1).4

Respondent has moved

2

Petitioner admits to filing this MAR in his Petition, but
uses different dates than contained in the supporting documents.
(See Docket Entry 2, ¶ 11(b).) Given the nature of the analysis
below, the differing dates do not affect the timeliness
determination.
3

Petitioner appended many different items to his Petition,
not all clearly labeled.
(See Docket Entry 2 at 16-33.)
It
appears that he included a subsequently made copy of this motion in
his attachments to the Petition. (Id. at 18-20.) Petitioner’s
motion attempts to relitigate his objection to the joinder of his
criminal trials and essentially functions as another MAR. (Id.)
4

Under Rule 3(d) of the Rules Governing Section 2254 Cases in
United States District Courts, the Court deems the instant Petition
filed on August 27, 2013, the date Petitioner signed the Petition
(under penalty of perjury) as submitted to prison authorities.
(See Docket Entry 2 at 15.)
3

to dismiss the Petition on statute of limitation grounds.
Entry 10.)

(Docket

Petitioner filed a response (Docket Entry 15), a

supplement to his response (Docket Entry 16), and an affidavit
(Docket Entry 17) regarding Respondent’s instant Motion.

For the

reasons that follow, the Court should grant Respondent’s instant
Motion.
Petitioner’s Claims
Petitioner raises four claims for relief in his Petition: (1)
“Objection to joinder/motion for severance” (Docket Entry 2 at 5);
(2) “Aggravating and mitigating factors” (id. at 7); (3) “Marriage
challenge because racial discrimination and racial prejudice to
Defendant’s

United

States

constitutional

rights

as

a

married

citizen” (id. at 8); and (4) “Obstruction of justice and conflict
of interests” (id. at 10).
Discussion
Respondent moves for dismissal of the Petition on the grounds
that

Petitioner

filed

limitation period.

his

Petition

outside

See 28 U.S.C. § 2244(d)(1).

of

the

one-year

In order to assess

Respondent’s statute of limitations argument, the undersigned must
first determine when Petitioner’s one-year period to file his
Section 2254 Petition commenced.

The United States Court of

Appeals for the Fourth Circuit has explained:
Under § 2244(d)(1)(A)-(D), the one-year limitation period
begins to run from the latest of several potential
starting dates:

4

(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 paragraphs (B) or (C) apply in
this situation.

Rather, Petitioner argues that he has newly

discovered evidence, thereby requiring application of paragraph
(D).

(Docket Entry 2 at 14.)

Alternatively, if paragraph (A)

applies, then Petitioner argues that the Court should toll the
one-year limitation period (Docket Entry 15 at 2), or that his
actual innocence allows him to proceed despite the time bar (Docket
Entry 2, ¶ 18).

Petitioner’s arguments lack merit.

As to when the statute of limitations began to run, paragraph
(D) states that the one-year limitation begins when the factual
predicate of a claim “could have been discovered through the
exercise of due diligence,” not upon its actual discovery.
5

28

U.S.C. § 2244(d)(1)(D); Schlueter v. Varner, 384 F.3d 69, 74 (3d
Cir. 2004); see also Johnson v. Polk, No. 1:07CV278, 2008 WL
199728, at *3 (M.D.N.C. Jan. 22, 2008) (unpublished) (Tilley, J.
adopting

recommendation

of

Sharp,

M.J.)

(“Under

28

U.S.C.

§ 2244(d)(1)(D), the limitations period begins to run when the
petitioner knows, or through due diligence could discover, the
important

facts

underlying

his

potential

recognizes their legal significance.”).

claim,

not

when

he

Here, Petitioner’s “new

evidence” consists of trial transcripts wherein Petitioner objected
to the joinder of his criminal trials.

(Docket Entry 2 at 17.)

Petitioner represented himself at trial and made the objection in
issue himself; therefore, Petitioner knew the basis of his claim at
that time, and the receipt of trial transcripts does not dictate
when the statute of limitations began to run.

See Sistrunk v.

Rozum, 674 F.3d 181, 189 (3d Cir. 2012) (holding that “evidence
that is

previously

known,

but

only

newly

available

does not

constitute newly discovered evidence” under paragraph (D) (citation
and internal quotation marks omitted)); Johnson, 2008 WL 199728, at
*3 (“Once a petitioner is alerted to factual circumstances that
could form the basis for a habeas claim, the statute of limitations
begins to run under § 2244(d)(1)(D), and accrual of the statute
does not await the collection of evidence which supports the
facts.”

(internal citation omitted)).

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Therefore, paragraph (D)

does not determine the start date of the statute of limitations and
paragraph (A) applies.
Under

paragraph

(A),

Petitioner’s

case

became

final

on

Wednesday, June 17, 2009 - 90 days after Petitioner failed to seek
review in the United States Supreme Court of the Supreme Court of
North Carolina’s denial of his petition for discretionary review on
March 19, 2009.

See Sup. Ct. R. 13.1; Clay v. United States, 537

U.S. 522, 527 (2003). Petitioner’s one-year limitation period then
ran from June 17, 2009, until its expiration on June 17, 2010,
without Petitioner’s proper filing of any post-conviction petitions
in state or federal court.

Petitioner did not file the instant

Petition until August 27, 2013, over three years past the deadline.
Although

Petitioner

filed

two

MARs

during

that

one-year

period, he should have filed them in the state trial court rather
than in the North Carolina Court of Appeals or Supreme Court.
N.C. Gen. Stat. § 15A-1413.

See

Accordingly, those post-conviction

filings did not toll the statute of limitations.

See Artuz v.

Bennett, 531 U.S. 4, 8 (2000) (holding that petitioners must file
petitions according to the applicable laws and rules to satisfy the
“properly filed” requirement for tolling the one-year limitation
period).

Furthermore, Petitioner’s filing of a MAR in the state

trial court in April of 2013 did 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

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limitations period do not restart or revive the federal limitations
period).5

Therefore, Petitioner filed his Petition untimely,

outside of the one-year limitation period.
Despite the Petition’s untimeliness, Petitioner argues that
the Court should still consider his Petition.
¶ 18.)

(Docket Entry 2,

Petitioner first asserts that the Court should equitably

toll the one-year limitation period.

(Id.)

Second, he contends

that his actual innocence precludes application of the one-year
limitation period.

(Id.)

The undersigned will address these

arguments in turn.
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 limitation period, see Holland v. Florida, 560
U.S. 631, 634 (2010).

Equitable tolling requires that Petitioner

demonstrate that (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 this case, Petitioner asserts several reasons why equitable
tolling

should

apply:

his

trial

counsel

provided

ineffective

assistance (Docket Entry 15 at 2-3, 5), the United States Post
Office lost legal documents addressed to the Wake Forest Innocence

5

Petitioner’s other state post-conviction filings (detailed
above) also occurred after the one-year period expired and failed
to qualify as “properly filed” for purposes of tolling.
8

and Justice Clinic (Docket Entry 15 at 3), and the North Carolina
Actual Innocence Inquiry Commission delayed handling his case
(id.). As to Petitioner’s ineffective assistance of counsel claim,
Petitioner alleges that his counsel called him “stupid” (Docket
Entry 2, ¶ 18), and filed the PDR in Petitioner’s direct appeal
without his consent (Docket Entry 15 at 2, 5).
These circumstances do not rise to the level necessary to
warrant equitable tolling.
prong

of

Holland,

he

Even assuming Petitioner met the first
has

failed

to

allege

circumstances that prevented a timely filing.
counsel’s

alleged

unauthorized

filing

extraordinary

Regarding appointed

of

the

PDR,

far

from

preventing Petitioner from filing his Petition, counsel’s action
actually benefitted Petitioner.

In order for a federal court to

address a habeas corpus petition, Section 2254(b)(1) requires the
petitioner to exhaust his state remedies.

In North Carolina, a

petitioner may satisfy that obligation either by directly appealing
the conviction based on the issue(s) later raised in the federal
habeas action - including pursuing a PDR with the North Carolina
Supreme Court - or by filing a MAR that raises the issue(s) in
question.

See Lassiter v. Lewis, No. 5:11–HC–2082–D, 2012 WL

1965434, at *4 (E.D.N.C. May 31, 2012) (unpublished).

In other

words, by filing the PDR, Petitioner’s counsel preserved the issues
raised

therein

for

federal

habeas

review,

thereby

protecting

Petitioner from a procedural default. See Coleman v. Thompson, 501

9

U.S. 722, 731 (1991).

Furthermore, the one-year limitation period

did not begin until the North Carolina Supreme Court ruled on the
PDR, so that time did not count against Petitioner.

Finally,

Petitioner’s allegations of name calling, even if true, do not show
how such actions prevented Petitioner from timely filing his
Petition.

Cf. Massey v. Brooks, No. 07-2654, 2007 WL 3231702, at

*4 & n.8 (E.D. Pa. Oct. 29, 2007) (unpublished) (Robreno, J.,
adopting recommendation of Rice, M.J.) (refusing to equitably toll
the statute of limitations when the petitioner alleged ineffective
assistance of counsel because his counsel allegedly “lied to him,
told him to shut up, and would not file his motion or address his
claim” without any support in the record).

Therefore, neither of

Petitioner’s allegations against appointed counsel provide a basis
for equitable tolling.
Similarly, Petitioner’s allegations regarding lost legal mail
and

delays

by

the

Innocence

Commission

do

not

suffice.

See

Witherspoon v. White, No. 1:12–cv–352–RJC, 2013 WL 1798609, at *2
(W.D.N.C. April 29, 2013) (unpublished) (refusing to equitably toll
the statute of limitations when the North Carolina Actual Innocence
Inquiry

Commission

allegedly

delayed

in

responding

to

the

petitioner’s request for help); Burns v. Beck, 349 F. Supp. 2d 971,
974 (M.D.N.C. 2004) (Beaty, J., adopting recommendation of Eliason,
M.J.) (noting that misplacement of legal papers usually does not
suffice as a ground for equitable tolling); cf. Dockery v. Beck,

10

No. 1:02CV00070, 2002 WL 32813704, at *2 (M.D.N.C. Aug. 1, 2002)
(unpublished) (Beaty, J., adopting recommendation of Eliason, M.J.)
(refusing to equitably toll the statute of limitations based on
claims that Prisoner Legal Services delayed responding to the
petitioner’s request for help).
Moreover,

the

record

belies

any

assertion

that

some

extraordinary circumstance prevented Petitioner from timely filing
his habeas motion considering the post-conviction filings he made
in state court.

During the one year limitation period, Petitioner

managed to file two MARS in state court (as well as many other
documents

after

the

expiration

of

the

limitation

period).

Petitioner has not explained why he remained able to file those
documents despite his circumstances, but could not file a timely
habeas petition under Section 2254.
As to Petitioner’s claim of actual innocence, the United
States Supreme Court has recognized that a showing of actual
innocence

may

overcome

the

one

year

statute

of

limitations.

McQuiggin v. Perkins, ___ U.S. ___, ___, 133 S. Ct. 1924, 1928
(2013). However, the Court also recognized that showings of actual
innocence “are rare,” and that a petitioner must demonstrate that
no reasonable juror could vote to find the petitioner guilty beyond
a reasonable doubt.

Id.

In this case, Petitioner has not made a

sufficient showing of actual innocence. Petitioner alleges that he
faced “trumped-up” and “false charges” meant to damage his “life

11

and credibility with racism, deliberate falsity, and reckless
disregard for his family life.”
Petitioner

provides

nothing

(Docket Entry 2, ¶ 18.)

beyond

conclusory

However,

allegations

of

corruption and police misconduct to support his claim of actual
innocence.

(See Docket Entries 16, 17.)

Thus, Petitioner has

failed to demonstrate that no reasonable juror could find him
guilty beyond a reasonable doubt, and his actual innocence claim
does not prevent application of the one-year limitation period.
IT IS THEREFORE RECOMMENDED that the Court grant Respondent’s
Motion to Dismiss (Docket Entry 10), that the Court deny the
Petition (Docket Entry 2), and that Judgment be entered dismissing
this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 16, 2014

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