MILLER v. PERRY
Filing
35
MEMORANDUM ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 9/30/2016, adopting the Magistrate Judge's Recommendation and Respondent's motion for summary judgment (Doc. 26 ) is GRANTED, the Petition (Doc. 1 ) is DISMISSED, and Judgm ent be entered dismissing this action. A judgment dismissing this action will be entered contemporaneously with this Order. 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. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARK ANTHONY MILLER,
Petitioner,
v.
FRANK L. PERRY,
Respondent.
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1:13CV1019
MEMORANDUM ORDER
The Recommendation of the United States Magistrate Judge was
filed with the court in accordance with 28 U.S.C. § 636(b) and, on
August 9, 2016, was served on the parties in this action.
31.)
(Doc.
Petitioner Mark Anthony Miller filed objections to the
Recommendation.
(Doc. 33; Doc. 33-1.)
Petitioner’s objections
and brief, totaling thirty-six pages, are repetitive and exceed
the twenty-page limit provided by this court’s Local Rules.
See
L.R. 72.4(d).
The court has reviewed the portions of the Magistrate Judge’s
Recommendation to which objection was made and has made a de novo
determination, which is in accord with the Magistrate Judge’s
Recommendation.
The court will therefore adopt the Magistrate
Judge’s Recommendation and grant summary judgment in Respondent’s
favor.
I.
BACKGROUND
Miller’s petition contests two sets of State convictions, one
from December 10, 1998, and one from June 1, 2000.
(Doc. 1.)
It
is Miller’s objection related to his 2000 convictions that the
court addresses below.
The essential facts are laid out well in the Recommendation.
The essence of the claim is that following an unsuccessful jury
trial in 2000, Miller filed a pro se notice of appeal on June 7,
2000.
(Doc. 27-6 at 13.)
His attorney (now deceased) also filed
a notice of appeal on June 12, 2000. (Id. at 14.) Miller requested
removal of his trial counsel and the appointment of appellate
counsel.
(Doc. 12-1 at 4.)
Miller’s trial counsel moved to
withdraw, declared Miller’s indigency, and requested appointment
of a public defender.
But no order was entered on the motion to
withdraw or the appointment of appellate counsel.
Consequently,
the appeal was not prosecuted.
Some nine-plus years later, Miller filed a pro se motion in
the trial court on December 21, 2009, seeking the production of
the stenographic transcript to revive the appellate process.
The
motion was denied in January 2010.
Over a year later, on September 29, 2011, North Carolina
Prisoner Legal Services wrote a trial judge seeking the appointment
of an appellate defender to prosecute the appeal, which was granted
in October 2011.
so
the
trial
By now the trial transcript had been destroyed,
court
ordered
that
prepared.
2
a
reconstructed
summary
be
On January 23, 2012, Miller’s new counsel filed his record on
appeal with the North Carolina Court of Appeals.
64.)
(Doc. 27-5 at
On January 31, 2012, he filed a petition for writ of
certiorari seeking a belated appeal (Doc. 7-4), and on February 2,
2012, he filed his appellate brief (Doc. 27-2).
On February 13,
2012, the State of North Carolina moved to dismiss the appeal.
(Doc. 7-2; Doc. 7-5.)
The court of appeals dismissed Miller’s
appeal on February 29, 2012 (Doc. 7-7), and denied his certiorari
petition on March 6, 2012 (Doc. 7-8).
In neither case did the
court explain its decision. On August 23, 2012, the North Carolina
Supreme Court declined to review the court of appeals’ decision.
(Doc. 8-2.)
Miller filed his present habeas petition on November 14, 2013.
(Doc. 1.) This court granted multiple extensions of time requested
by Miller in order to permit him to exhaust his State court
remedies.
(Docs. 12, 15, 16, 17, 18, 19, 21, 22, and 23.)
Once
those were exhausted, this proceeding ensued.
II.
ANALYSIS
Among other contentions, Miller now claims the Magistrate
Judge erred in concluding that his petition is time-barred under
28 U.S.C. § 2244(d)(1).
Section 2244(d)(1) provides that a State
prisoner may file a § 2254 petition only within one year of the
latest of four dates, one of which is “the date on which the
[State-court] judgment became final by the conclusion of direct
3
review or the expiration of the time for seeking such review.”
U.S.C. § 2244(d)(1)(A) (2012).
28
Miller contends that the judgment
for his 2000 convictions became final “by the conclusion of direct
review” on November 21, 2012, 90 days after the North Carolina
Supreme Court refused to review the court of appeals’ dismissal.
(E.g., Doc. 33 at 4, 14.)
On this understanding, Miller argues,
his § 2254 petition is timely.
Under North Carolina law, an appellant who fails to perfect
his appeal in a timely manner loses his right of appeal by
operation of law.
The Magistrate Judge properly relied on Woods
v. Shelton, 93 N.C. App. 649, 379 S.E.2d 45 (1989), and McGinnis
v. McGinnis, 44 N.C. App. 381, 261 S.E.2d 491 (1980), which
concluded that appellants lost their rights of appeal by failing
to perfect their appeals within the time required by the North
Carolina Rules of Appellate Procedure.
At the time of Miller’s convictions, the North Carolina Rules
of
Appellate
Procedure
required
(in
non-capital
cases)
an
appellant to settle the record on appeal within 35 days of the
reporter’s certification of delivery of the trial transcript if it
was ordered or, if no transcript was ordered, within 35 days of
the filing of the notice of appeal.
N.C. R. App. P. 11(a).
The
rules provided an additional 21 days for the parties to settle the
record if it was contested, N.C. R. App. P. 11(b), or an additional
period of 10 days if they needed to seek judicial settlement of a
4
disputed record, N.C. R. App. P. 11(c).
have
been
amended
slightly
essentially equivalent.
since
While these time periods
2000, 1
they
have
remained
Thus, where no transcript is ordered (as
here, even if the failure was merely negligent), an appellant has
approximately 8 to 9 weeks to settle his record on appeal and thus
perfect the appeal.
The record was then required to be filed with
the court of appeals within 15 days of settlement, N.C. R. App. P.
12(a), and would thereupon be docketed by the clerk where the
appellant was authorized to appeal in forma pauperis, N.C. R. App.
P. 12(b).
In Woods, the appellant did nothing to perfect her appeal for
139 days after filing notice of appeal.
The court of appeals held
that her failure to settle the record within the 60 days then
required by Rule 11(a) constituted an abandonment of the appeal
and “work[ed] a loss of the right of appeal.”
at 653, 379 S.E.2d at 47.
Woods, 93 N.C. App.
Thus, the court dismissed the appeal.
Likewise, in McGinnis, the appellant failed to tender a proposed
record on appeal within 30 days of the notice of appeal, in
violation of the time limit then required by Rule 11(a), nor did
he seek an extension under Rule 27(c).
appeals
refused
defendant’s
to
consider
“purported
the
appeal . . .
1
Consequently, the court of
appeal,
is
not
holding
before
that
this
the
Court
E.g., Rule 11(b) now extends the time for serving notice of approval of the
proposed record on appeal or objections/amendments from 21 to 30 days.
5
because defendant failed [for 88 days], after giving notice of
appeal on 1 September 1978, to take any further timely step
required
appeal.”
by
the
Rules
of
Appellate
Procedure
to
perfect
his
McGinnis, 44 N.C. App. at 387, 261 S.E.2d at 495.
In
fact, the court concluded that the failure to perfect the appeal
“reinvested the trial court with jurisdiction to render further
orders in the cause.”
Id. at 386, 261 S.E.2d at 495.
The court of appeals reaffirmed Woods and McGinnis in Coffey
v. Savers Life Insurance Co., No. COA01-741-2, 2003 WL 1873506
(N.C. Ct. App. Apr. 15, 2003), holding that an appeal “is not
properly before this Court [of appeals] if the parties fail to
perfect
the
Procedure.”
appeal
pursuant
to
the
N.C.
Rules
of
Appellate
2003 WL 1873506, at *2 (citing McGinnis, 44 N.C. App.
381, 261 S.E.2d 491). 2
Thus, all three court of appeals cases have
held that the failure to timely perfect an appeal according to the
North Carolina Rules of Appellate Procedure “results in the loss
of the right of appeal” because the appeal is “not properly before
[the] Court.”
Id. at *2.
Here, under North Carolina law, Miller’s failure to perfect
his appeal to the North Carolina Court of Appeals within the time
constraints of Rule 11(a) rendered it a nullity by mid-2000, and
2
The Coffey court distinguished the loss of the right of appeal from
formal “abandonment,” which “exists only where there is express notice,
showing, and judgment of abandonment.” Coffey, 2003 WL 1873506, at *1
(quoting Kirby Bldg. Sys., Inc. v. McNiel, 327 N.C. 234, 240, 393 S.E.2d
827, 831 (1990)).
6
his convictions became final contemporaneously.
Miller delayed
for more than nine years thereafter before seeking to investigate
the status of his appeal.
His habeas petition, filed on November
14, 2013, is therefore far, far out of time.
In his objections, Miller criticizes the Magistrate Judge for
relying on Woods and McGinnis because they are civil, not criminal,
cases.
(Doc. 33 at 12.)
This criticism is unfounded.
The North
Carolina Rules of Appellate Procedure apply to both civil and
criminal cases, N.C. R. App. P. 1(b); see also, e.g., McGinnis, 44
N.C. App. at 386, 261 S.E.2d at 494–95 (applying Rule 11 in a civil
case); State v. Parker, No. COA11-1525, 2012 WL 1995171, at *1
(N.C. Ct. App. June 5, 2012) (applying the same rule in a criminal
case), except when the rules themselves indicate otherwise, see,
e.g., N.C. R. App. P. 3 (addressing how and when to take appeal in
civil cases); N.C. R. App. P. 4 (addressing the same issue for
criminal cases).
Miller himself cites a civil case less than one
page after he criticizes the Magistrate Judge for doing the same
thing.
(Doc. 33 at 13 (citing McNiel, 327 N.C. at 240, 393 S.E.2d
at 831).)
In an attempt to overcome the timeliness bar, Miller argues
that his trial convictions became final by “conclusion of direct
review” on August 23, 2012, when the North Carolina Supreme Court
declined to review the court of appeals’ dismissal of his petition.
(Doc. 33 at 13.)
At that point, according to Miller, the appeal
7
was formally “abandoned.”
But the court of appeals did not issue
an opinion explaining why it dismissed Miller’s appeal, nor did
the
North
Carolina
dismissal.
Supreme
Court
in
declining
to
review
the
Based on Woods, McGinnis, and Coffey, however, it is
clear that under North Carolina law, Miller lost his right of
appeal by operation of law years before the court of appeals issued
its judgment.
Cf. Thomas v. Goodwin, 786 F.3d 395, 398-99 (5th
Cir. 2015) (finding that AEDPA one-year limitations period began
to run at the expiration of the time for seeking State appellate
review and
not
when
the
State
appellate
court
later
refused
review); Butler v. Cain, 533 F.3d 314, 318 (5th Cir. 2008) (finding
AEDPA one-year limitations period began to run when the time for
filing a writ application expired and not when the Louisiana
Supreme Court denied the application in a one-word denial five
months later).
Moreover, accepting Miller’s argument would lead to illogical
results.
If a State court’s subsequent rejection of an untimely
appeal constitutes “the conclusion of direct review,” any State
prisoner
who
successfully
is
evade
derelict
§ 2244’s
in
prosecuting
timeliness
simply by filing a belated direct appeal.
his
appeal
requirements
for
could
years
Under Miller’s theory,
an appellant could do this repetitively, with each appeal resetting
the clock for § 2244(d)(1).
Construing the phrase “conclusion of
direct review or the expiration of the time for seeking such
8
review”
to
include
conclusion
by
operation
of
law
prevents
petitioners from circumventing § 2244’s timeliness requirements.
This construction also gives effect to North Carolina law and
affords its judicial system respect.
Miller argues that this construction violates Jiminez v.
Quarterman, 555 U.S. 113 (2009).
This is incorrect.
There, the
Supreme Court, in a self-described “narrow” decision, held that a
State court judgment that became final based on delay was no longer
“final” for purposes of § 2244(d)(1)(A) where the State appellate
court expressly granted the defendant the right to file an outof-time direct appeal.
Id. at 121.
Here, Miller sought such a
right but was denied. (Doc. 7-8.) Thus, Miller’s State conviction
remained final and his situation does not fall within Jiminez’s
“narrow” holding.
555 U.S. at 121.
Therefore, Miller’s loss of his right of appeal constituted
“the conclusion of direct review or the expiration of the time for
seeking such review” for § 2244’s purposes.
occurred
years
before
Miller
filed
his
Because the loss
§ 2254
petition,
the
petition is untimely.
In response to the foregoing, Miller argues that the reason
he lost his right of appeal was that his trial counsel was
constitutionally deficient for failing to perfect the appeal.
(E.g., Doc. 33 at 8, 12.)
But there are legal and factual bars to
this claim.
9
Most importantly, Miller raised his ineffective assistance of
counsel claims in his State court Motion for Appropriate Relief
(“MAR”) proceeding.
The State trial court rejected the claims
Miller now raises on several grounds, including the fact that they
were subject to summary dismissal for Miller’s failure to support
the MAR petition with proper factual and documentary evidence in
violation of N.C. Gen. Stat. § 15A-1420(b)(1).
(Doc. 27-4 at 4.)
Moreover, the court rejected Miller’s ineffective assistance claim
relating
to
the
2000
convictions
specifically
as
being
both
procedurally barred and meritless based on Miller’s failure to act
for years.
counsel
(Id. at 5.)
were
Finally, the court found that, even if
constitutionally
demonstrate prejudice.
(Id.)
deficient,
Miller
failed
to
Lee v. Clarke, 781 F.3d 114, 122
(4th Cir. 2015) (to show prejudice, a petitioner “must demonstrate
‘a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.’
A
reasonable
probability
is
one
‘sufficient
to
undermine
confidence in the outcome.’” (quoting Strickland v. Washington,
466 U.S. 668, 694 (1984))).
In challenging the MAR decision (as the last merits-based
decision on appeal), Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)
(holding that the federal habeas court looks to the last explained
state court judgment), Miller must show that it is contrary to or
an unreasonable application of federal law or an unreasonable
10
determination of the facts under 18 U.S.C. § 2254(d).
Miller has
done neither here. 3
3
Miller argues that his trial counsel was obliged to prosecute the
appeal of his 2000 convictions until excused by the court, evidenced by
his motion “to withdraw as appellate counsel,” and citing N. C. Rule of
Professional Conduct 1.16(b)(1) as well as State v. Crump, 277 N.C. 573,
591, 178 S.E.2d 366, 377 (1971), and Smith v. Bryant, 264 N.C. 208, 21112, 141 S.E.2d 303 (1965). (Doc. 29 at 2; Doc. 33 at 8.) Miller’s
briefing is less than candid.
North Carolina Rule of Professional Conduct 1.16(b)(1) provides
merely that a lawyer may withdraw if doing so will not cause any material
adverse effect on the client’s interests. Rule 1.16(c), which appears
more pertinent, requires a lawyer to “comply with applicable law
requiring notice to or permission of a tribunal when terminating a
representation.” In this regard, Miller notably does not address N.C.
Gen. Stat. § 15A-143 (1999), part of the North Carolina Criminal
Procedure Act, which provides that “[a]n attorney who enters a criminal
proceeding . . . undertakes to represent the defendant . . . until entry
of final judgment, at the trial stage.”
N.C.G.S. § 15A-143 (1999)
(emphasis added).
Miller’s trial counsel did this, and even filed a
protective notice of appeal.
Miller himself filed his own notice of
appeal and acknowledges that he asked that his trial lawyer (who the
Judgment and Commitment reflect was retained, not appointed (see Doc. 7
at 28, 34)) be removed from his case for the appeal. (Doc. 12-1 at 4.)
Moreover, there is no evidence that trial counsel had been retained to
handle any appeal. In addition, Crump and Smith involved very different
scenarios - a lawyer who sought to terminate his representation during
trial, not as to any subsequent appeal - and the court emphasized a
lawyer’s independent obligation to the tribunal until the end of the
case. Here, the evidence indicates that trial counsel discharged his
obligation to the trial court through judgment.
Miller also argues that after the trial ended, his trial counsel
led him to believe that he was working on his appeal. (Doc. 33 at 9–
10.) The record contains testimony that on a few occasions the lawyer
told Miller and his sister that Miller was “going to get an appeal” (Doc.
27-3 at 14–15), but there is no other evidence of communication from the
lawyer. Indeed, the thrust of Miller’s complaint is counsel’s alleged
failure of any communication. This limited statement under the facts
alleged, if true, is far from any representation that the trial counsel
himself would handle Miller’s appeal. Rather, it is just as likely an
indication of the fact that counsel had filed a notice of appeal and
that the public defender would provide an attorney for him, as had
occurred after Miller’s 1998 convictions. (Doc. 5 at 20.)
11
III. CONCLUSION
For the reasons stated, therefore,
IT IS ORDERED that Respondent’s motion for summary judgment
(Doc. 26) is GRANTED, that the Petition (Doc. 1) is DISMISSED, and
that Judgment be entered dismissing this action.
A
judgment
dismissing
this
action
will
be
entered
contemporaneously with this Order.
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
September 30, 2016
12
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