CRUZ v. MARSHALL et al
Filing
36
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 09/20/2017, that Petitioner's objections (Doc. 14 ) are OVERRULED, that Respondent's Motion for Summary Judgment (Doc. 28 ) is GRANTED, and that the Petition (D oc. 3 ) is DENIED. 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
ALBERTO MARQUEZ CRUZ,
Petitioner,
v.
BOB W. MARSHALL and
FRANK L. PERRY,
Respondents.
)
)
)
)
)
)
)
)
)
)
1:13CV1097
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Petitioner, a prisoner of the State of North Carolina,
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 3.) This matter now comes before the court upon remand
from the United States Court of Appeals for the Fourth Circuit.
Cruz v. Marshall, 673 F. App’x 296 (4th Cir. 2016)
(unpublished). Pursuant to that remand, the circuit court
directed this court to review de novo the Memorandum Opinion and
Recommendation (“Recommendation”) of United States Magistrate
Judge L. Patrick Auld and Petitioner’s objections to that
Recommendation, see Cruz, 673 F. App’x at 299. This court will
set out its de novo analysis herein below. Nevertheless, before
this court completed its de novo review as directed, the State
filed a motion for summary judgment (Doc. 28), and Petitioner
has responded (Doc. 35). That motion is ripe for ruling. Rather
than refer the motion for summary judgment to the Magistrate
Judge in accordance with this court’s case assignment order,
this court will also address the State’s motion for summary
judgment.
I.
PROCEDURAL HISTORY
On January 10, 2011, in the Superior Court of Guilford
County, Petitioner pled guilty to conspiracy to traffic in more
than 400 grams of cocaine, trafficking by possessing more than
400 grams of cocaine, trafficking by transporting more than 400
grams of cocaine, trafficking by delivering more than 400 grams
of cocaine, trafficking by transporting 28-200 grams of cocaine,
trafficking by sale and delivery of 28-200 grams of cocaine, and
trafficking by possessing 28-200 grams of cocaine, in cases
10CRS084147-150 and 10CRS084152-153, and received a consolidated
judgment with a mandatory term of 175 to 219 months in prison.
(See Petition for Writ of Habeas Corpus (“Petition”) (Doc. 3)
¶¶ 1-6; Doc. 3-2 at 41-43.)1 He did not appeal. (See Petition
(Doc. 3) ¶ 8.)
Throughout this document, pin citations refer to the
number appended to the footer of the document upon its filing in
the CM/ECF system. The trial court appears to have filed a
corrected copy of the judgment and commitment form on
February 21, 2011; however, the presiding judge dated and signed
the form on January 10, 2011. (See Doc. 3-2 at 41-43).
1
- 2 -
On March 8, 2013, Petitioner mailed a Motion for
Appropriate Relief (“MAR”) to the trial court (see Petition
(Doc. 3) at 23; Doc. 3-1 at 11-15; Doc. 3-2 at 1-22), which that
court denied on May 21, 2013 (see Petition (Doc. 3) ¶ 11(a);
Doc. 3-1 at 6-10). On August 14, 2013, Petitioner filed a Motion
for Reconsideration of the MAR (see Petition (Doc. 3) ¶ 11(b);
id. at 27-31; Doc. 3-1 at 1-5), which the trial court denied on
August 23, 2013 (see Petition (Doc. 3) ¶ 11(b); id. at 26).
Petitioner sought certiorari review with the North Carolina
Court of Appeals. (See id. ¶ 11(c); id. at 21-25.) On
October 24, 2013, the North Carolina Court of Appeals denied
that petition. (See id. ¶ 11(c); id. at 20.)
Petitioner then signed the instant Petition, under penalty
of perjury, and dated it for mailing on December 4, 2013 (see
Petition (Doc. 3) at 11), and the court stamped and filed the
Petition on December 9, 2013 (id. at 1).2 Respondents moved to
dismiss the Petition on statute of limitation grounds, (Docs. 6,
7), and the Magistrate Judge issued a Memorandum Opinion and
Recommendation that the court grant Respondents’ motion and
dismiss the Petition as untimely. (Recommendation (Doc. 12).)
Under Rule 3(d) of the Rules Governing Section 2254 Cases
in United States District Courts, the court deems the instant
Petition filed on December 4, 2013, the date Petitioner signed
the Petition (under penalty of perjury) as submitted to prison
authorities. (See Petition (Doc. 3) at 11.)
2
- 3 -
Petitioner filed objections to the Recommendation (Pet’r’s
Objs. (Doc. 14)), in which he supplemented his argument with
additional factual allegations regarding the timeliness of his
Petition (see id. at 3-5). The court (per the Honorable James A.
Beaty, Jr.) entered an Order and Judgment adopting the
Recommendation and dismissing the Petition as untimely. (Docs.
15, 16.)
Petitioner appealed (Doc. 17), and the United States Court
of Appeals for the Fourth Circuit appointed Petitioner counsel
(Doc. 21) and granted him a certificate of appealability on the
issue of the timeliness of his Brady claim (Doc. 22).3 The Fourth
Circuit vacated the court’s Judgment based on the following
reasoning:
The magistrate judge dismissed as untimely the
ineffective assistance of counsel and Brady claims
because Petitioner failed to include specific dates
when he learned facts critical to these claims.
Petitioner responded by providing those dates [in his
objections]. With the new information, the [Report &
Recommendation] no longer included the basis to
dismiss Petitioner’s Brady or ineffective assistance
of counsel claims. Therefore, the district court
should have explained its decision that the petition
was untimely so as to permit meaningful appellate
review.
For the foregoing reasons, we vacate and remand
for further proceedings. Specifically, we direct the
On appeal, Petitioner subsequently filed a motion to
expand the certificate of appealability to include the
timeliness of his ineffective assistance of counsel claim, which
the Fourth Circuit granted.
3
- 4 -
district court to review de novo the [Report &
Recommendation], including Petitioner’s objections,
and provide sufficient explanation for its ruling,
whatever that may be.
Cruz, 673 F. App’x at 299.
The Magistrate Judge granted Respondents’ motion to expand
the record to include the stenographic transcript of
Petitioner’s plea proceedings (Docs. 25, 26), motion for leave
to exceed the page limit in Respondents’ summary judgment brief
(Doc. 31), and motion to amend/correct Respondents’ brief in
support of the summary judgment motion (Docs. 32, 33). (Text
Order dated June 30, 2017.) Remaining for adjudication is
Respondents’ for summary judgment (Doc. 28), to which Petitioner
has responded in opposition. (Doc. 35.)
II.
DISCUSSION
A.
Objections
In the Recommendation, the Magistrate Judge analyzed the
timeliness of Petitioner’s ineffective assistance of counsel and
Brady claims under 28 U.S.C. § 2244(d)(1)(D), and recommended
dismissal of those claims as untimely based on the following
reasoning:
The United States Court of Appeals for the Fourth
Circuit has explained:
Under § 2244(d)(1). . . (D), the one-year
limitation period begins to run from . . . :
. . . .
- 5 -
(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).
. . . .
Under subparagraph (D), 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. 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 claim, not when he recognizes their legal
significance.”).
. . . .
. . . In order to determine when the statute of
limitations commenced for these claims under
subparagraph (D), Petitioner should have included in
his instant Petition when he obtained the report
containing his fingerprint and/or DNA analysis from
the drugs. Petitioner’s failure to do so proves fatal.
. . . In his filings, Petitioner does not state
when he supposedly received the report containing
exculpatory fingerprint and/or DNA evidence. Clearly,
Petitioner obtained the report at least by March 14,
2013, when he filed his MAR and mentioned the alleged
report. However, no other information appears to
explain how or when Petitioner obtained the report.
Absent such allegations, Petitioner’s conclusory and
unsupported statement that subparagraph (D) applies
cannot and does not demonstrate the necessary “due
diligence” for application of subparagraph (D).
- 6 -
(Recommendation (Doc. 12) at 4-8 (footnote and internal
citations omitted).)
In Petitioner’s objections to the Recommendation, he
reasserts that subparagraph (D) applies, and adds the following
new facts and argument, emphasized below:
Petitioner contends that subparagraph (D) of 28
USC § 2244(d)(1) applies because Petitioner received
on or about January 15, 2013 the [d]iscovery documents
presented by the State, and within the aforesaid
[d]iscovery, Petitioner found out, for the first time,
the FACT that the aforesaid and alleged drugs were
NEVER tested for DNA, and the report indicated that NO
fingerprints were found on it [sic].
Petitioner found the said lack of evidences [sic]
on January 15, 2013, and the said information was
[m]aterial for the Petitioner’s case and remained
obstructed and hidden by the [district attorney] from
the Petitioner causing GREAT PREJUDICE to the
[d]efense.
Had Petitioner’s [c]ounsel requested the results
of the fingerprints and the DNA testing, [Petitioner]
would have opted to go to trial. . . .
Petitioner contends that he requested a copy of
the “entire file” to his [c]ounsel since the day of
his arrest, and after due dilligence [sic],
[Petitioner] received his file from [c]ounsel on or
about March 1st, 2013.
Counsel refused to turn in, the complete file
until the Indigent Defense Service and the [North
Carolina] State Bar intervene[d] and order[ed]
[c]ounsel to forward the entire file to the
Petitioner.
- 7 -
(Pet’r’s Objs. (Doc. 14) at 3-4 (emphasis added).)4 For the
reasons that follow, the court will overrule Petitioner’s
objections.5
Petitioner’s allegations, emphasized above, fall far short
of establishing that Petitioner could not, with due diligence,
have discovered the factual predicates of his ineffective
assistance and Brady claims earlier than January 15, 2013. As an
initial matter, Petitioner has provided nothing, beyond his
unsworn statements, to substantiate these new factual
allegations. Petitioner has not provided the court with copies
Although Petitioner purports to verify his objections, the
“Verification” lacks notarization or any indication that he made
his statements under oath, affirmation, or penalty of perjury.
(See Pet’r’s Objs. (Doc. 14) at 7.)
4
The Fourth Circuit very recently clarified that, although
district courts need not consider new claims or grounds for
relief raised for the first time in objections, those courts
must, on de novo review, consider all new factual allegations
and arguments in the objections directed at existing claims.
See Samples v. Ballard, No. 16-6740, 2017 WL 2695194, at *4-5 &
n.7 (4th Cir. June 23, 2017) (providing that its prior decision
in United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992),
which held that, “as part of its obligation to determine de novo
any issue to which proper objection is made, a district court is
required to consider all arguments directed to that issue,
regardless of whether they were raised before the magistrate,”
applies in the habeas context and acknowledging that its
“approach in George is a minority position, and one that has
been criticized and rejected by our sister circuits”).
Accordingly, the court will consider Petitioner’s new factual
allegations as part of its de novo review.
5
- 8 -
of (1) the report reflecting the fingerprint analysis of the
drugs or any of the other “discovery documents”; (2)
correspondence (if any) between Petitioner and his counsel, the
“Indigent Defense Service,” and/or the North Carolina State Bar
regarding his requests for the case file; (3) the “Order” from
the State Bar to Petitioner’s counsel to forward the case file
to Petitioner; and (4) correspondence (if any) with the State
regarding “discovery documents.” (See Docs. 3, 14, 35.)
Moreover, Petitioner has not provided any details regarding the
timing or number of his requests for his case file. (See id.)
Petitioner also does not explain why, given the State’s apparent
willingness to produce the fingerprint report, he was not able
to procure the report earlier than January 15, 2013. (See id.)
Petitioner’s failure to provide the above-described details
falls far short of establishing that Petitioner could not have
become aware of any relevant discovery information prior to
January 15, 2013. Petitioner does not have a right to wait until
he receives hard copies of information to file a claim. As a
result, evidence of due diligence requires an explanation of
when the information could have been or was discovered in the
exercise of due diligence, not simply when the hard copy of the
report was provided to Defendant.
First, “Petitioner contends that he requested a copy of the
‘entire file’ to his [c]ounsel since the day of his arrest, and
- 9 -
after due dilligence [sic], [Petitioner] received his file from
[c]ounsel on or about March 1st, 2013.” (Pet’r’s Objs. (Doc. 14)
at 3-4.) This allegation suggests Petitioner was aware of a
discovery file at some point during his representation. His
complaint is in the failure of counsel to provide a physical
copy of the file; Petitioner nowhere alleges that counsel did
not review the file with Petitioner nor does he allege that he
was not aware of the file information. Petitioner’s awareness of
the file information, regardless of whether he received a
physical copy of the documents, can be sufficient to provide
notice of the claim. See, e.g., McCleskey v. Zant, 499 U.S. 467,
499 (1991) (“[E]ven if the State intentionally concealed the 21page document, the concealment would not establish cause here
because, in light of McCleskey’s knowledge of the information in
the document, any initial concealment would not have prevented
him from raising the claim in the first federal petition.”).
Petitioner carefully avoids describing the discovery information
he was provided during the original case. While this lack of
information may not establish Petitioner did in fact receive any
information on either fingerprint or DNA testing during the
original case, it explains why Petitioner’s conclusory
allegations are insufficient to establish that he could not or
did not discover the fingerprint/DNA testing prior to January
15, 2013, in the exercise of due diligence. Petitioner’s
- 10 -
allegations only address when he contends he received hard
copies of the file, not when he received the information in the
file or may have been on notice of the information in the file.
Second, Petitioner’s silence on the issue of what he did or
did not receive during the original case is all the more
significant as Petitioner sought a substantial assistance
departure at sentencing. The State, as part of the summary
judgment motion, attached a copy of the transcript of plea
hearing. (See Ex. 1 (Doc. 26-1).) As part of the proffer of
facts tendered by the State and not objected to by Petitioner,
the prosecutor gave the following statement:
Mr. Cruz almost immediately indicated to law
enforcement officers – they explained to him that he
was being charged with these offenses – that he could
attempt to contact the source for the cocaine and make
arrangements for that individual to meet with the law
enforcement officers. . . .
Mr. Cruz went on to explain to the law
enforcement officers that the individual that had
driven him there, Mr. Herrera, was aware that he had
the drugs, and that while another individual was
responsible for the drugs, Mr. Herrera was aware that
he was bringing drugs to this location, and he had
offered to pay him $200 to drive.
(Id. at 17.) Petitioner’s counsel argued at sentencing that
Petitioner:
told me, during my first conversation with him, that
he wished to attempt to provide whatever information
he could. It appears all of the information he
provided was truthful, although, unfortunately, it was
all not actionable. . . .
- 11 -
All of this is a long way of my asking the Court
to consider the substantial assistance statute
90-95(h) subparagraph 5 . . . .”
(Id. at 22.) These facts make it clear that Petitioner initially
made his own independent decision to cooperate with law
enforcement and to some degree identified his supplier,
regardless of the presence of fingerprint or DNA evidence.
Petitioner persisted in his efforts to cooperate through
sentencing on January 10, 2011 (see Ex. 1 (Doc. 26-1) at 1).
Under such circumstances, Petitioner has not demonstrated
the necessary “due diligence” for application of subparagraph
(D). See Freeman v. Zavaras, 467 F. App’x 770, 775 (10th Cir.
2012) (refusing to apply subparagraph (D) where petitioner
failed to explain why he could not have discovered the alleged
Brady materials earlier); Farabee v. Clarke, No. 2:12-cv-76,
2013 WL 1098098, at *3 (E.D. Va. Feb. 19, 2013) (unpublished)
(finding subparagraph (D) inapplicable where petitioner’s
“threadbare” allegations failed to explain inability to discover
predicate earlier), recommendation adopted, 2013 WL 1098093
(E.D. Va. Mar. 13, 2013) (unpublished); Norrid v. Quarterman,
No. 4:06-CV-403-A, 2006 WL 2970439, at *1 (N.D. Tex. Oct. 16,
2006) (unpublished) (concluding that petitioner bears burden of
establishing applicability of section 2244(d)(1)(D), including
his due diligence, and that conclusory statements do not satisfy
burden); Redmond v. Jackson, 295 F. Supp. 2d 767, 772 (E.D.
- 12 -
Mich. 2003) (holding that unsupported and conclusory arguments
do not warrant application of § 2244(d)(1)(D)); Frazier v.
Rogerson, 248 F. Supp. 2d 825, 834 (N.D. Iowa 2003) (finding
subparagraph (D) inapplicable where petitioner “never
identifie[d] when or how he discovered his ‘new evidence,’” and
noting that petitioner’s “contention that he could not have
discovered it sooner with due diligence is unsupported and
conclusory”).
As a final matter, although Petitioner does not
specifically object to the Magistrate Judge’s recommendation to
reject Petitioner’s actual innocence gateway claim (see Doc. 12
at 12-13), he reasserts in the objections the argument that his
actual innocence ought to prevent application of the statute of
limitations (see Pet’r’s Objs. (Doc. 14) at 5). The United
States Supreme Court has recognized that a showing of actual
innocence may overcome the one-year statute of limitations.
McQuiggin v. Perkins, 569 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 his
objections, Petitioner merely reiterates his conclusory
allegations of innocence. (See Pet’r’s Objs. (Doc. 14) at 5; see
also Petition (Doc. 3) at 18.) Furthermore, Petitioner’s guilty
- 13 -
plea undercuts his argument that he “claimed his innocence from
day one.” (Petition (Doc. 3) at 18.) Accordingly, the Magistrate
Judge correctly rejected Petitioner’s claim of actual innocence.
B.
Motion for Summary Judgment
Respondents move for summary judgment on the grounds, inter
alia, that subparagraph (D) of the one-year statute of
limitations bars Petitioner’s ineffective assistance and Brady
claims. (See Doc. 29 at 9-17.) Petitioner responded in
opposition, but did not provide any facts or argument in support
of his opposition. (Doc. 35.) For the reasons described above,
the court adopts the Magistrate Judge’s recommendation that
subparagraph (D) bars the Petition. Accordingly, the court will
grant Respondents’ Motion for Summary Judgment.
III. CONCLUSION
IT IS THEREFORE ORDERED that Petitioner’s objections (Doc.
14) are OVERRULED, that Respondent’s Motion for Summary Judgment
(Doc. 28) is GRANTED, and that the Petition (Doc. 3) is DENIED.
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.
- 14 -
This the 20th day of September, 2017.
____________________________________
United States District Judge
- 15 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?