DAMIAN v. SHENAHAN
Filing
10
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 1/29/2015; that Respondent's Motion to Dismiss (Docket Entry 6 ) be granted, the Petition (Docket Entry 2 ) be denied, and that Judgment be entered dismissing this action, without issuance of a certificate of appealability. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
IVAN CERVANTES DAMIAN,
Petitioner,
v.
FRANK L. PERRY,1
Respondent.
)
)
)
)
)
)
)
)
)
1:14CV285
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 June 8, 2011, in the Superior Court of Durham County,
Petitioner entered an Alford plea to human trafficking child
victim, indecent liberties with a child, sexual servitude child
victim, and involuntary servitude child victim, in cases 10 CRS
8999-9000, and received a sentence, pursuant to his plea agreement,
of 72 to 96 months imprisonment.
66.)2
He did not appeal.
(Id., ¶¶ 1-6; id. at 58-61, 65-
(Id., ¶ 8.)
1
Consistent with Rule 2(a) of the Rules Governing Section
2254 Cases, the Petition in this case originally named Kieran
Shanahan (misspelled as “Shenahan”), then-Secretary of the North
Carolina Department of Public Safety, as Respondent. (Docket Entry
2.)
Frank L. Perry currently serves in that position, see
https://www.ncdps.gov/Index2.cfm?a=000003,000008,000153,002681
(last visited Jan. 27, 2015), and, by operation of Federal Rule of
Civil Procedure 25(d) (applicable to this proceeding pursuant to
Rule 12 of the Rules Governing Section 2254 Cases), now appears as
Respondent.
2
The Petition indicates that Petitioner proceeded to a bench
trial in his State criminal case (see Docket Entry 2, ¶ 6(c));
On
September
16,
2013,
Petitioner
filed
Appropriate Relief (“MAR”) with the trial court.
id. at 38-52.)3
a
Motion
for
(Id., ¶ 11(a);
On October 10, 2013, the trial court summarily
denied Petitioner’s MAR.
(Id., ¶ 11(a); id. at 37.)
Petitioner
then filed a Motion for Reconsideration of the denial of his MAR
with the trial court on October 23, 2013.
(Id. at 31-36.)
trial court denied the Motion for Reconsideration.
The
(Id. at 30.)4
Petitioner then sought certiorari review with the North Carolina
Court of Appeals on February 24, 2014.
(Id. at 22-29.)5
On March
however, it appears Petitioner misunderstood the question or made
a typographical error as he previously acknowledged that he had
pled guilty (see id., ¶ 6(a)) and other filings clarify that he did
not go to trial (see, e.g., id. at 58-61).
3
Petitioner dated his MAR on September 16, 2013 (Docket Entry
2 at 51), but the trial court did not file the MAR until September
19, 2013 (see id. at 37). As either date leads to a recommendation
of dismissal, the undersigned need not address the discrepancy.
4
The trial court appears to have made a typographical error
in its Order denying the Motion for Reconsideration. The trial
court’s Order states that Petitioner filed the Motion for
Reconsideration on October 23, 2013, but the trial court dated the
Order as entered on October 20, 2013. (See Docket Entry 2 at 30.)
The record contains a copy of the Order with a faded file stamp,
making it difficult for the undersigned to determine the date of
filing. (See id.) Respondent states that the trial court filed
the Order on November 1, 2013 (Docket Entry 7 at 1), as does
Petitioner (see Docket Entry 2, ¶ 11(c)(8)).
As the one-year
limitations period had already expired, the undersigned need not
address the discrepancy.
5
The North Carolina Court of Appeals listed the certiorari
petition as filed on February 26, 2014. (Docket Entry 2 at 12.)
As the one-year limitations period had already expired, the
undersigned need not address the discrepancy.
2
10,
2014,
the
North
certiorari petition.
Carolina
Court
of
Appeals
denied
that
(Id. at 12.)
Finally, Petitioner signed the instant Petition, under penalty
of perjury, and dated it for mailing on March 28, 2014 (id. at 11),
and the Court stamped and filed the Petition on April 4, 2014 (id.
at 1).6
Respondent moved to dismiss the Petition as untimely
(Docket Entry 6), and Petitioner responded
(Docket Entry 9).
For
the reasons that follow, the Court should grant Respondent’s
instant Motion because Petitioner filed his Petition outside of the
one-year limitations period.
Petitioner’s Claims
The Petition raises four grounds for relief: (1) “Violation of
Vienna
Convention[]
[r]ights”
(Docket
Entry
2
at
4)
because
Petitioner did not receive “consular visits established by Article
36 of the Vienna Convention” (id. at 27); (2) “Invalid guilty plea”
(id. at 5) because “the [p]lea was not knowing, voluntary and
neither [sic] intelligent” (id. at 27); (3) “Cruel and [u]nusual
[p]unishment when sentence imposed was grossly [d]isproportionate”
(id. at 6); and (4) “Ineffective [a]ssistance of [c]ounsel” (id. at
7) because his counsel “fail[ed] to investigate into the [e]lements
of all alleged crime, evidences, and to object in time and form
6
Under Rule 3(d) of the Rules Governing Section 2254 Cases in
United States District Courts, the Court deems the instant Petition
filed on March 28, 2014, the date Petitioner signed the Petition
(under penalty of perjury) as submitted to prison authorities.
(See Docket Entry 2 at 11.)
3
[to] the
State[‘]s
‘FACTUAL
BASIS’”
(id.
at
49
(emphasis
in
original)).7
Discussion
Respondent moves to dismiss the Petition on the grounds that
Petitioner filed his Petition outside of the one-year limitations
period, see 28 U.S.C. § 2244(d)(1).
(Docket Entry 7 at 3-12.)
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:
(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;
7
Petitioner did not reargue or provide support for these
grounds of relief in his Petition; rather, he merely reincorporated
his state court filings into his Petition. This practice burdens
the Court with the task of reviewing Petitioner’s filings, violates
Local Rule 7.2(a)(2), and brings with it the possibility of
consequences. See Stephenson v. Pfizer Inc., No. 1:13CV147, 2014
WL 4410580, at *1 n.1 (M.D.N.C. Sept. 8, 2014) (unpublished).
Respondent should also cite specifically to the record rather than
to “copy attached to federal habeas petition” (Docket Entry 7 at 12).
4
(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).
must assess timeliness on claim-by-claim basis.
DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).
The Court
See Pace v.
Neither Petitioner nor
Respondent argue that subparagraphs (B) or (C) apply in this
situation.
(See Docket Entries 2, 3, 5, 6, 7, 9.)
However,
Petitioner does assert that subparagraph (D) applies.
Entry 2 at 10; Docket Entry 9 at 3.)
contends,
for
reasons
detailed
(Docket
Alternatively, Petitioner
below,
that
the
statute
of
limitations should not prohibit the Court from addressing the
merits
of
his
case.
(Docket
Entry
9
at
3-8.)
Thus,
the
undersigned must next examine the applicability of subparagraph (A)
and (D) to decide when the statute of limitations commenced.
Under subparagraph (D), the one-year limitations period begins
when the factual predicate of a claim “could have been discovered
through the
discovery.
F.3d
69,
1:07CV278,
exercise
of
due
diligence,” not
upon
its
actual
28 U.S.C. § 2244(d)(1)(D); Schlueter v. Varner, 384
74
(3d
2008
Cir.
WL
2004);
199728,
see
at
5
*3
also
Johnson
(M.D.N.C.
v.
Jan.
Polk,
22,
No.
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.”).
Although Petitioner contends that subparagraph (D) applies, he
does not elaborate on the reasoning for its application to his
grounds of relief or identify the grounds to which it should apply.
(See Docket Entry 9 at 3-8.)
Instead, Petitioner’s arguments
mainly address the need for equitable tolling of the statute of
limitations.
(Id.)
Thus, Petitioner has not borne “the burden of
proving that he exercised due diligence, in order for the statute
of limitations to begin running from the date he discovered the
factual predicate of his claim . . . .”
465, 471 (6th Cir. 2006).
undersigned
nonetheless
DiCenzi v. Rose, 452 F.3d
In an abundance of caution, the
will
review
the
applicability
of
subparagraph (D) to Petitioner’s claims.
At the time Petitioner pled guilty, he either knew or through
due diligence should have known whether he received a consular
visit in accord with Article 36 of the Vienna Convention; whether
he knowingly, intelligently, and voluntarily pled guilty; the
length of his sentence; whether his appointed counsel investigated
the charges against him; and whether his appointed counsel objected
to the State’s factual basis.
Thus the undersigned finds no basis
6
for application of subparagraph (D) to Petitioner’s grounds for
relief.
Under subparagraph (A), Petitioner’s conviction, for purposes
of the statute of limitations, became final, at the latest, on June
22, 2011 - the final day with which he could have appealed his
conviction.
See N.C.R. App. P. 4(a)(2) (requiring a notice of
appeal within fourteen days of the entry of judgment); see also
Gonzalez v. Thaler, __ U.S. __, __, 132 S. Ct. 641, 653-54 (2012)
(holding that a petitioner’s case becomes final when the time for
pursuing direct review expires).
from
June
22,
2011,
until
Petitioner’s one-year period ran
its
expiration
on
June
22,
2012.
Petitioner did not file his instant Petition until March 28, 2014.
(See Docket Entry 2 at 11.)
Thus, Petitioner filed his Petition
well beyond the one-year limitations period.
Although Petitioner
filed a MAR in state court, the statute of limitations had already
run, and the belated filing could not revive the already expired
one-year limitations period. See Minter v. Beck, 230 F.3d 663, 665
(4th Cir. 2000) (finding that state filings made after the federal
limitations period do not restart or revive the federal limitations
period).
Despite
the
instant
Petition’s
untimeliness,
Petitioner
requests the Court to address the merits of his Petition.
Docket Entry 9.)
(See
Although the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) provides for a one-year statute of
7
limitations for habeas claims, see 28 U.S.C. § 2244(d)(1), a court
can equitably toll the one-year limitations 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.
analysis.
Id. at 649.
Equitable tolling involves a case by case
Id. at 649-50.
Here, Petitioner argues Trevino v. Thaler, __ U.S. __, 133
S. Ct. 1911 (2013), and Martinez v. Ryan, __ U.S. __, 132 S. Ct.
1309 (2012), provide an exception to the statute of limitations;
further, Petitioner lists his actual innocence, his lack of legal
fluency, denial of assistance by North Carolina Prisoner Legal
Services, and the lack of access to a law library as reasons to
toll the statute of limitations.
(See Docket Entry 9 at 3-8.)
The
undersigned will consider each argument in turn.
Both Trevino and Martinez addressed whether a court could
bypass the procedural default rule to review claims of ineffective
assistance of counsel in certain situations.
S. Ct. at 1915; Martinez, 132 S. Ct. at 1313.
See Trevino, 133
In both cases, the
Supreme Court held that where petitioners, under state law or as a
matter of practice, cannot claim ineffective assistance of counsel
on direct review, the procedural default rule will not prevent a
federal court from reaching the issue if petitioners had either no
counsel or ineffective counsel in the initial-review collateral
8
proceeding.
1320.
Trevino, 133 S. Ct. at 1921; Martinez, 132 S. Ct. at
Neither case overruled or even addressed the statute of
limitations as Petitioner claims (see Docket Entry 9 at 4).
Trevino, 133 S. Ct. at 1911; Martinez, 132 S. Ct. at 1309.
Trevino and Martinez provide no assistance to Petitioner.
See
Thus,
See
Arthur v. Thomas, 739 F.3d 611, 630-31 (11th Cir.) (holding that
Martinez and Trevino do not affect applicability of Section 2254’s
statute of limitations), cert. denied, __ U.S. __, 135 S. Ct. 106
(2014).
Petitioner also contends that his actual innocence ought to
prevent application of the statute of limitations.
9 at 6-8.)
(Docket Entry
The United States Supreme Court has recognized that a
showing of actual innocence may excuse noncompliance with the oneyear limitations period.
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 puts forth only conclusory allegations of innocence
without any supporting evidence.
Petitioner does not present the
“rare” case required by McQuiggin.
Petitioner’s final arguments - that he lacks legal fluency,
North Carolina Prisoner Legal Services denied assistance, and he
lacks access to a law library - do not provide a sufficient basis
9
for tolling.
See United States v. Sosa, 364 F.3d 507, 512 (4th
Cir. 2004) (“[I]gnorance of the law is not a basis for equitable
tolling.”); Johnson v. Beck, No. 1:08CV336, 2008 WL 3413303, at *4
(M.D.N.C. Aug. 8, 2008) (refusing to toll when prisoner did not
have access to a library, but did have access to North Carolina
Prisoner Legal Services), recommendation adopted, slip op. (Docket
Entry 17) (M.D.N.C. Feb. 12, 2009); Rhew v. Beck, 349 F. Supp. 2d
975, 978 (M.D.N.C. 2004) (Osteen, Sr., J, adopting recommendation
of Eliason, M.J.) (refusing to toll when prisoner cited delays by
North Carolina Prisoner Legal Services), appeal dismissed, 158 F.
App’x 410 (4th Cir. Dec. 13, 2005) (unpublished).
Additionally,
Petitioner provides no support for these contentions beyond his own
conclusory allegations, and conclusory allegations will afford
Petitioner no relief.
1268
(11th
insufficient
Cir.
to
See San Martin v. McNeil, 633 F.3d 1257,
2011)
raise
(“Mere
the
conclusory
issue
of
allegations
equitable
are
tolling.”).
Furthermore, Petitioner’s ability to file his MAR and to petition
for a writ of certiorari in state court notwithstanding these
conditions undermine his request for tolling.
10
IT
IS
THEREFORE
RECOMMENDED
that
Respondent’s
Motion
to
Dismiss (Docket Entry 6) be granted, the Petition (Docket Entry 2)
be denied, and that Judgment be entered dismissing this action,
without issuance of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 29, 2015
11
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