STONEMAN v. SOLOMON
Filing
12
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 03/26/2014; that the motion for summary judgment (Doc. 4 ) is GRANTED and the petition for a writ of habeas corpus (Doc. 1 ) is DISMISSED WITH PREJUDICE. This disp osition renders the recently filed motion for summary judgment by Stoneman (Doc. 11 ) MOOT. Finding neither a 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. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RANDALL GRAY STONEMAN, JR.,
Petitioner,
v.
GEORGE SOLOMON, Director of
North Carolina Department of
Public Safety,
Respondent.
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1:13cv836
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court is Respondent George Solomon’s motion for
summary judgment (Doc. 4) on the pro se petition for a writ of
habeas corpus filed by Randall Gray Stoneman, Jr. (Doc. 1). 1
Stoneman challenges his State custody under 28 U.S.C. § 2254.
For the reasons set forth below, the petition will be denied.
I.
BACKGROUND
On
Guilford
August
County
19,
2005,
Superior
Stoneman
Court
was
and
tried
by
convicted
a
of
jury
in
reckless
driving, felonious operation of a motor vehicle to elude arrest,
and being a habitual felon.
(Doc. 1 at 1; Doc. 6-4 at 18-20.)
He was sentenced the same day to 150 to 189 months in prison.
(Doc. 1 at 1; Doc. 6 at 1.)
1
Stoneman appealed his conviction to
Stoneman has recently filed his own motion for summary judgment,
which is not ripe for consideration. (Doc. 11.)
the North Carolina Court of Appeals and, while that appeal was
pending, filed a Motion for Appropriate Relief (“MAR”) with that
same court.
Stoneman
(Doc. 6-6.)
petitioned
the
Again, while the appeal was pending,
North
Carolina
Court
of
Appeals
certify his case to the North Carolina Supreme Court.
7.)
to
(Doc. 6-
On January 2, 2007, the North Carolina Court of Appeals
issued its decision, denying the appeal and MAR.
(Doc. 6-2.)
Stoneman then applied directly to the North Carolina Supreme
Court for discretionary review (Doc. 6-9); that petition was
summarily denied on March 8, 2007 (Doc. 6-3).
Thereafter,
Stoneman
filed
a
motions for relief in State court.
number
of
post-conviction
On June 20, 2008, he filed a
MAR in State court (Doc. 7-1); on July 25, 2008, the MAR was
denied (Doc. 7-2).
On April 28, 2011, he filed another MAR in
State court (Doc. 7-3) and amended it with the aid of counsel on
September 25, 2012 (Doc. 7-4); on February 13, 2013, the MAR was
denied (Doc. 7-5).
On March 21, 2013, he filed another MAR in
State court (Doc. 8-1); on April 9, 2013, the MAR was denied
(Doc.
8-2).
On
May
7,
2013,
Stoneman
petitioned
the
North
Carolina Court of Appeals to review the State court’s February
2013 denial of his MAR (Doc. 7-6); on May 23, 2013, the court
denied the petition (Doc. 7-8).
Finally, Stoneman petitioned
the North Carolina Supreme Court for discretionary review; that
petition was denied on August 27, 2013.
2
(Doc. 8-3.)
The pro se
petition for a writ of habeas corpus was filed in the present
case on September 23, 2013.
II.
(Doc. 1.)
ANALYSIS
A.
Standard of Review
The
Supreme
Court
has
recognized
the
appropriateness
of
Rule 56 summary judgment motions in habeas cases, see Blackledge
v. Allison, 431 U.S. 63, 80 (1977), as has the Fourth Circuit,
see Maynard v. Dixon, 943 F.2d 407 (4th Cir. 1991).
Summary
judgment is appropriate when there exists no genuine dispute of
material fact and the moving party is entitled to judgment as a
matter of law.
Fed. R. Civ. P. 56; Zahodnick v. Int’l Bus.
Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997).
party
bears
the
burden
of
initially
coming
The moving
forward
and
demonstrating the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
burden
is
met,
the
non-moving
party
must
then
Once that
affirmatively
demonstrate that there is a genuine dispute of material fact
that requires trial.
Matsushita Elec. Indus. Co. Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
trial
unless
there
is
sufficient
There is no issue for
evidence
favoring
the
non-
moving party for a fact finder to return a verdict for that
party.
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
242,
250
(1986); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810,
817
(4th
Cir.
1995).
When
3
making
the
summary
judgment
determination,
the
court
must
view
the
evidence,
and
all
justifiable inferences from it, in the light most favorable to
the non-moving party.
Zahodnick, 135 F.3d at 913; Halperin v.
Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997).
The
court
construes
petitions, liberally.
pro
se
petitions,
including
habeas
Fields v. Attorney Gen. of State of Md.,
956 F.2d 1290, 1298 n.20 (4th Cir. 1992); Haines v. Kerner, 404
U.S. 519, 520 (1972).
However, this liberal construction has
its limits and does not require the court to become an advocate
for a petitioner.
Gordon v. Leeke, 574 F.2d 1147, 1152 (4th
Cir. 1978).
Stoneman
raises
three
claims
in
his
present
petition.
Solomon asserts that the first and third claims are time-barred
under 28 U.S.C. § 2244 and that the remaining claim fails on the
merits.
(Doc. 1; Doc. 6 at 20-27.)
For the reasons set forth
below, the court agrees.
B.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214, governs habeas petitions
and
prescribes
a
one-year
U.S.C. § 2244(d)(1).
latest
of
four
limitations
period
for
them.
28
The one-year clock begins to run at the
possible
dates,
present case:
4
three
of
which
apply
in
the
(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;
. . .
(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.
Id.
The one-year clock is tolled during the time State post-
conviction proceedings are pending in any State court and may be
equitably tolled in “rare instances.”
Harris v. Hutchinson, 209
F.3d 325, 327 (4th Cir. 2000) (citing 28 U.S.C. § 2244(d)(2)).
However, once the limitations period has expired, later-filed
State post-conviction petitions cannot revive it.
Minter v.
Beck, 230 F.3d 663, 665-66 (4th Cir. 2000).
Stoneman’s
“fail[ed]
to
first
instruct
fleeing to elude.”
claim
the
is
that
jury
on
(Doc. 1 at 5.)
the
the
State
trial
misdemeanor
court
aspect
of
The North Carolina statute
under which Stoneman was convicted makes it a misdemeanor to
operate a motor vehicle while fleeing or attempting to elude law
enforcement.
N.C. Gen. Stat. § 20-141.5.
However, the statute
also includes aggravating factors for that crime and, if two or
more
aggravating
felony.
Id.
factors
are
present,
the
crime
becomes
a
The two aggravating factors in Stoneman’s case
5
were speeding in excess of fifteen miles per hour and reckless
driving.
(Doc. 6-2 at 4.)
Stoneman argues that the jury did
not make a specific finding as to whether he sped in excess of
fifteen miles per hour of the speed limit and that therefore his
conviction is unlawful.
(Doc. 1 at 5; Doc. 10 at 1.)
This claim arises from Stoneman’s trial itself, which means
that he knew of the factual predicate of his claim when the
trial occurred.
Stoneman does not assert any new constitutional
right as to this claim.
Therefore, the latest § 2244(d) start
date applicable to this claim is “the date on which the judgment
became
final
by
the
conclusion
of
direct
review
expiration of the time for seeking such review.”
§ 2244(d)(1)(A).
or
the
28 U.S.C.
As stated earlier, the North Carolina Supreme
Court denied direct review of Stoneman’s case on March 8, 2007.
(Doc. 6-3).
for
Stoneman then had ninety days to file a petition
certiorari
with
the
United
States
which the § 2244(d) clock did not run.
F.3d 701, 704 (4th Cir. 2002).
post-conviction
or
Court,
during
Hill v. Braxton, 277
The one-year clock began on June
6, 2007, and expired on June 5, 2008.
State
Supreme
other
Stoneman did not file any
collateral
review
during
time, which would have tolled the limitations period.
that
His later
petitions (the first of which was filed on June 20, 2008) do not
revive his current claim.
6
Stoneman
argues
that
his
petition
should
be
considered
timely because his case “has been under review in the lower
courts” (Doc. 1 at 13) and includes a timeline of his State
court petitions from 2011 to 2013 in his response to Solomon’s
motion for summary judgment (Doc. 10 at 3-4).
His argument is
unavailing, however, as the limitations period for this claim
expired in 2008, well before he began filing his State postconviction motions.
Stoneman also asserts that there were “time delays because
of
being
Carolina
unable
to
Prisoner
receive
Legal
information
Service,”
he
and
“was
forms
unable
from
to
North
receive
answers and advice because of non-communication by attorneys,”
and he “was denied legal copies by prison officials.”
(Doc. 1
at 13.)
The one-year limitations period in § 2244(d) is subject to
equitable
tolling.
Harris,
209
F.3d
at
329-30.
Equitable
tolling is only available, however, in limited circumstances:
when the petitioner was prevented from asserting his claims by
the State’s wrongful conduct or when extraordinary circumstances
beyond
the
timely.
of
petitioner’s
Id. at 330.
representation,
control
made
it
impossible
to
file
Unfamiliarity with the legal process, lack
delay
counsel
are
in
not
access
to
adequate
legal
for
and
mistakes
of
tolling.
Id. at 330-31 (collecting cases); Dockery v. Beck, No.
7
grounds
materials,
equitable
1:02CV00070, 2002 WL 32813704 (M.D.N.C. Aug. 1, 2002) (waiting
for
Prison
limitations
Legal
Services
period).
As
insufficient
to
the
reason
State’s
to
wrongful
toll
conduct,
Stoneman has provided only a naked assertion that he “was denied
legal copies by prison officials.”
(Doc. 1 at 13.)
He does not
elaborate on that assertion even after Solomon challenged the
applicability of equitable tolling to the claim, he does not
explain what “legal copies” he is referring to, and he does not
assert that the conduct was improper.
Moreover, he has not
asserted any alleged wrongful conduct before June 5, 2008; his
filings are silent as to when the alleged denial of legal copies
occurred.
In
other
words,
Stoneman
has
not
produced
any
evidence but relies on a bare, conclusory assertion regarding
equitable
tolling.
infrequent”
Equitable
remedy,
“unconscionable
to
tolling
is
available
only
when
enforce
the
limitation
party and gross injustice would result.”
330.
Stoneman
has
not
demonstrated
a
“guarded
and
it
would
be
period
against
the
Harris, 209 F.3d at
that
this
is
such
a
situation.
Stoneman’s third claim is a “constitutional challenge to
the jurisdictional propriety of habitual felon status.”
at 8.)
habitual
(Doc. 1
He argues that North Carolina’s sentencing scheme for
felons
effectively
punishes
8
defendants
twice,
in
violation of the Constitution’s Double Jeopardy Clause.
(Id.;
Doc. 10 at 4.)
This claim is time-barred for the same reasons as his first
claim.
The factual predicate was apparent from the date of
Stoneman’s sentencing in August 2005, and no new constitutional
rule is alleged.
Therefore, Stoneman’s time for filing this
claim expired on June 5, 2008, just as it did for his first
claim.
Equitable tolling does not apply for the same reasons as
outlined above.
The court notes, however, that even if it were
to reach the merits of this claim, the United States Supreme
Court has repeatedly rejected challenges to recidivist sentence
enhancements
based
on
ex
post
facto,
protection, and double jeopardy grounds.
due
process,
equal
See, e.g., Spencer v.
Texas, 385 U.S. 554, 559 (1967); Rummel v. Estelle, 445 U.S.
263, 265 (1980); see also United States v. Etheridge, 932 F.2d
318, 323 (4th Cir. 1991).
C.
Justice Reinvestment Act
Stoneman’s second – and only remaining – claim is based on
a “significant change in the law.”
(Doc. 1 at 6.)
He asserts
that the Justice Reinvestment Act (“JRA”), N.C. Gen. Stat. § 147.6 (2011), which took effect December 1, 2011, changed North
Carolina’s sentencing scheme for habitual felons and should be
applied retroactively to reduce his sentence.
1-3.)
(Id.; Doc. 10 at
Solomon does not contend that this claim is time-barred
9
under 28 U.S.C. § 2244(d), but he opposes it nevertheless on
several bases.
(Doc. 6 at 14-16.)
Chiefly, he argues that the
claim has already been adjudicated on the merits in State court
and that the JRA explicitly limits its applicability to offenses
committed “on or after December 1, 2011.”
(Id.)
As Stoneman
committed his offense before August 2005, Solomon argues, the
JRA does not apply to him.
A
State
court
judge
considered
this
same
claim
from
Stoneman on February 13, 2013, and denied relief:
[T]he
express
language
of
[the
JRA]
references
offenses occurring on or after the effective date of
December 1, 2011, whereas the cited MAR provision
dictates that “retroactive application of the changed
legal standard is required” (emphasis added). Our
courts have yet to apply the JRA retroactively, and
this court is compelled to decline to do so.
(Doc. 7-5 at 3 (emphasis in original).)
ruling, and
review it.
the
North
Carolina
Court
Stoneman appealed the
of
Appeals
declined
to
(Doc. 7-8.)
When a State court has adjudicated a claim on the merits, a
federal court cannot grant a writ of habeas corpus unless the
adjudication of the claim (1) was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2)
“resulted
in
a
decision
that
was
based
on
an
unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.”
28 U.S.C. § 2254(d).
10
The scope of
review is “both deferential and highly constrained.”
Golphin v.
Branker, 519 F.3d 168, 178 (4th Cir. 2008).
The facts as the State court judge determined them do not
appear
to
be
in
dispute;
instead,
Stoneman
asserts
that
his
rights to due process and equal protection under the Fourteenth
Amendment to the U.S. Constitution require the JRA to be applied
retroactively,
contrary.
in
the
(Doc. 10 at 2.)
support
because
despite
of
they
constitutional
this
statute’s
language
to
the
The cases Stoneman cites purportedly
proposition
concern
the
law
announced
as
plain
are
distinguishable,
retroactivity
in
of
judicial
new
however,
rules
holdings.
of
See
Teague v. Lane, 489 U.S. 288, 305-10 (1989); Penry v. Lynaugh,
492 U.S. 302, 329-30 (1989) (holding that, if the court were to
announce
execution
a
of
retroactively
new
rule
mentally
under
of
constitutional
retarded
Teague),
law
forbidding
the
people,
it
would
be
applied
abrogated
on
other
grounds
by
Atkins v. Virginia, 536 U.S. 304 (2002); Danforth v. Minnesota,
552 U.S. 264 (2008) (analyzing the retroactivity of the new rule
of constitutional law announced in Crawford v. Washington, 541
U.S. 36 (2004)); Horn v. Banks, 536 U.S. 266 (2002) (addressing
when a court must engage in a Teague analysis).
None of these
cases provides any support for the proposition that a federal
habeas
court
can
override
the
11
express
language
of
a
State
statute
that
requires
prospective
only. 2
application
North
Carolina federal habeas courts have repeatedly declined to apply
the
JRA
retroactively.
1:12CV891,
2013
WL
See,
1686756,
at
e.g.,
*4
Baines
(M.D.N.C.
v.
Apr.
Lewis,
18,
No.
2013);
Dover v. Ball, No. 5:12-cv-167-RJC, 2013 WL 3781958, at *1-2
(W.D.N.C. July 18, 2013); Brown v. Gray, No. 5:13-HC-2026-FL,
2014 WL 773465, at *4-5 (E.D.N.C. Feb. 25, 2014).
Stoneman has
not shown that the State court’s adjudication of his JRA claim
was
contrary
established
to
or
federal
Supreme Court.
an
law
unreasonable
as
application
determined
by
the
of
United
clearly
States
Consequently, his collateral attack based on the
JRA fails.
III. CONCLUSION
For the reasons stated, two of Stoneman’s claims are timebarred and his remaining claim does not involve a decision that
is
contrary
to,
or
an
unreasonable
application
of,
clearly
established federal law.
2
One case on which Stoneman relies concerns a new statutory rule, but
it does not help him.
State v. Whitehead holds that State trial
courts do not have the authority to apply a State statute
retroactively, contrary to the statute’s express terms, and are not
allowed to resentence a defendant on that basis.
722 S.E.2d 492
(2012). Whitehead therefore directly supports the ruling of the State
court (Doc. 7-5) that Stoneman seeks to challenge.
To the extent
Stoneman seeks to present an Eighth Amendment challenge, the court
notes that a legislature’s enactment of a new (and more lenient)
sentencing structure “does not transform the preexisting penalty
scheme into a cruel and unusual one.”
United States v. Speed, 656
F.3d 714, 720 (7th Cir. 2011) (in the context of the Fair Sentencing
Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372).
12
IT
IS
THEREFORE
ORDERED
that
the
motion
for
summary
judgment (Doc. 4) is GRANTED and the petition for a writ of
habeas
corpus
disposition
(Doc.
renders
1)
the
is
DISMISSED
recently
WITH
filed
PREJUDICE.
motion
for
This
summary
judgment by Stoneman (Doc. 11) MOOT.
Finding neither a 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.
/s/
Thomas D. Schroeder
United States District Judge
March 26, 2014
13
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