PEREZ v. PERRY
Filing
10
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 1/28/2015; 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
JUAN CELSO ZAVALETA PEREZ,
Petitioner,
v.
FRANK L. PERRY,
Respondent.
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)
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1:14CV311
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 4, 2010, in the Superior Court of Forsyth
County, Petitioner pled guilty to first-degree sex offense of a
child, first-degree rape of a child, and indecent liberties with a
child, in case 09 CRS 57756, and received a consolidated judgment
with a term of imprisonment for 168 to 211 months in prison.
¶¶ 1-6; Docket Entry 2-3 at 11-12.)1
He did not appeal.
(Id.,
(Docket
Entry 2, ¶ 8.)
On June 18, 2012, Petitioner filed a Motion for Appropriate
Relief (“MAR”) with the trial court.
(Docket Entry 2-2 at 33-41.)2
1
The Petition indicates that Petitioner proceeded to a bench
trial in his State criminal case (see Docket Entry 2, ¶ 6(c));
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., Docket Entry 2-3 at 7-10).
2
Petitioner dated his MAR on May 31, 2012 (see Docket Entry
2-2 at 38), but the trial court did not file it until June 18, 2012
On October 1, 2012, the trial court denied Petitioner’s MAR.
at 31-32.)
(Id.
Petitioner then filed a second MAR on May 29, 2013.
(Docket Entry 2-2 at 1-30.)3
The trial court denied Petitioner’s
second MAR on September 3, 2013.
(Docket Entry 2-1 at 9.)
Petitioner then sought certiorari review with the North Carolina
Court of Appeals on February 26, 2014.
(Id. at 2-8.)4
On March
17, 2014, the North Carolina Court of Appeals denied that petition.
(Id. at 1.)
Finally, Petitioner signed his Petition, under penalty of
perjury, and dated it for mailing on April 8, 2014 (Docket Entry 2
at 14), and the Court stamped and filed the Petition on April 11,
2014 (id. at 1).5
Respondent has moved to dismiss the Petition as
(see id. at 31).
As either date leads to a recommendation of
dismissal, the undersigned United States Magistrate Judge need not
determine which date controls.
3
Petitioner entitled the Motion as one for reconsideration of
his earlier MAR (see Docket Entry 2-2 at 1); however, the trial
court referred to it instead as a “Motion for Appropriate Relief”
(see Docket Entry 2-1 at 20). The differing labels do not affect
the undersigned’s analysis, and thus for the sake of simplicity and
continuity, the undersigned refers to it as a MAR.
Moreover,
Petitioner dated his MAR on March 18, 2013 (see Docket Entry 2-2 at
29), but the trial court did not file it until May 29, 2013 (see
Docket Entry 2-1 at 20). As either date leads to a recommendation
of dismissal, the undersigned need not determine which date
controls.
4
The North Carolina Court
certiorari petition as filed on
at 1). As either date leads to
undersigned need not determine
of Appeals instead referred to the
March 5, 2014 (see Docket Entry 2-1
a recommendation of dismissal, the
which date controls.
5
Under Rule 3(d) of the Rules Governing Section 2254 Cases in
United States District Courts, the Court deems the instant Petition
2
untimely.
9.)
For
(Docket Entry 6.)
the
Respondent’s
reasons
instant
Petitioner responded.
that
Motion
follow,
because
the
(Docket Entry
Court
Petitioner
should
grant
submitted
his
Petition outside of the one-year limitations period.
Petitioner’s Claims
The Petition raises four grounds for relief: (1) “Violation of
Brady[v. Maryland, 373 U.S. 83 (1963)] law” (Docket Entry 2 at 4)
because the State allegedly suppressed an “SBI report and [a]
[m]edical
report”
(Docket
Entry
2-2
at
11);
(2)
“Grossly
[d]isproportionate and [c]ruel and unusual [p]unishment” (Docket
Entry 2 at 6) because of “the sentence imposed” (Docket Entry 2-2
at 13); (3) “Violation of [d]ue [p]rocess of law by accepting a
plea which was invalid, unknowing and involuntary” (Docket Entry 2
at 7) because his counsel “led [] [Petitioner] to believe that
[Petitioner] will receive a sentence not to exceed a class I felony
for Indecent Liberties with a Minor, level I at the mitigated
range” (Docket Entry 2-2 at 16); and (4) “Violation of Article 36
of the Vienna Convention” (Docket Entry 2 at 9).6
filed on April 8, 2014, the date Petitioner signed the Petition
(under penalty of perjury) as submitted to prison authorities.
(See Docket Entry 2 at 14.)
6
Petitioner did not reargue or provide support for these
grounds
of
relief
in
his
Petition;
rather,
Petitioner
reincorporated eighty-seven pages worth of filings, and burdened
the Court with the task of reviewing them for him. This practice
violates Local Rule 7.2, and such action 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)
3
Discussion
Respondent moves to dismiss the Petition because Petitioner
filed his Petition outside of the one-year limitations period, see
28 U.S.C. § 2244(d)(1).
assess
Respondent’s
(Docket Entry 7 at 3-12.)
statute
of
limitations
In order to
argument,
the
undersigned must first determine when Petitioner’s one-year period
to file his 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;
(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.
(unpublished).
4
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008).
must determine timeliness on claim-by-claim basis.
DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).
The Court
See Pace v.
Neither Petitioner nor
Respondent claim that subparagraphs (B) or (C) apply in this
situation.
(See Docket Entries 2, 3, 5, 6, 7, 9.)
However, in
response to Respondent’s instant Motion, Petitioner asserts that
subparagraph (D) applies.
(Docket Entry 9 at 3.)
Alternatively,
Petitioner claims, for reasons detailed below, that the statute of
limitations should not prohibit the Court from addressing the
merits of his case.
(Id. at 3-9.)
Thus, the undersigned must
first determine which subparagraph applies in order 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
exercise
discovery.
F.3d
69,
1:07CV278,
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
*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.”).
5
Although Petitioner contends that subparagraph (D) applies,
Petitioner does not elaborate on the reasoning for its application
to his claims or to which claims it should apply.
Entry 9.)
address
(See Docket
Rather, Petitioner’s arguments in his response mainly
the
need
limitations.
for
(Id.)
equitable
tolling
of
the
statute
of
In an abundance of caution, the undersigned
nonetheless 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 the length of his sentence for
purposes
of
determining
whether
it
qualified
as
grossly
disproporationate; whether his actual plea matched his expected
plea; and whether he had received a consular visit in accord with
Article 36 of the Vienna Convention.
application
of
subparagraph
(D)
The only possible basis for
lies
in
Ground
1,
in
that,
Petitioner claims the State withheld exculpatory materials.
In Petitioner’s state filings, he alleged that, in May of 2012
he received a copy of an SBI report and medical records pertaining
to his case.
(Docket Entry 2-2 at 10-11.)
Petitioner does not
elaborate on how he obtained the documents.
That fact alone
subjects his request to proceed under Section 2244(d)(1)(D) to
dismissal.
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
6
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 his inability to discover the factual
predicate earlier), recommendation adopted, 2013 WL 1098093 (E.D.
Va. March 13, 2013) (unpublished); Norrid v. Quarterman, No. 4:06cv-403-A,
2006
WL
2970439,
at
*1
(N.D.
Tex.
Oct.
16,
2006)
(unpublished) (concluding that the petitioner had the burden of
demonstrating the applicability of subparagraph (D)); Frazier v.
Rogerson, 248 F. Supp. 2d 825, 834 (N.D. Iowa 2003) (refusing to
apply subparagraph (D) when the petitioner “never identifie[d] when
or how he discovered his ‘new evidence’”).
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 . . . .”
DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006).
Under subparagraph (A), Petitioner’s conviction, for purposes
of the statute of limitations, became final on August 4, 2010 - the
day of his conviction.
North Carolina limits the ability of
individuals who plead guilty to appeal their convictions as a
matter of right.
See N.C. Gen. Stat. § 15A-1444 (2010).
Here, the
trial court sentenced Petitioner to a term of 168 to 211 months in
prison -
the
minimum
sentence,
168
months,
falls
within
the
mitigated range of sentences for a B1 felony with Petitioner’s
7
prior record level of I, see N.C. Gen. Stat. § 15A-1340.17 (2010).
Therefore, Petitioner could not appeal his conviction as a matter
of right. See N.C. Gen. Stat. § 15A-1444(a1) (2010). Petitioner’s
case thus became final, for purposes of calculating the limitation
period, on August 4, 2010.
See 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);
see also Hairston v. Beck, 345 F. Supp. 2d 535, 537 (M.D.N.C. 2004)
(finding that, because the petitioner did not have a right to
appeal, the
limitation
period
ran
from
the day
of
judgment)
(Osteen, Sr., J., adopting the recommendation of Dixon, M.J.).7
Petitioner’s one-year period ran from August 4, 2010, until
its expiration on August 4, 2011.
Although Petitioner filed two
MARs in state court, he filed them after the limitations period had
run, and those belated filings could not toll the statute, 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). Therefore,
Petitioner filed his claims untimely, outside of the statute of
limitations.
7
Even if Petitioner had the opportunity to appeal, the North
Carolina Rules of Appellate Procedure require a notice of appeal
within fourteen days of judgment. N.C.R. App. P. 4(a)(2) (2010).
Thus, Petitioner’s ability to appeal would have expired August 18,
2010, and the limitations period would have expired on August 18,
2011 - well before he filed his MARs or the instant Petition.
8
Despite the Petition’s untimeliness, Petitioner requests that
the Court address the merits of his Petition.
3-9.)
(Docket Entry 9 at
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 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, he claims 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 4-8.)
The undersigned will
address each argument in turn.
Both Trevino and Martinez addressed whether a court could
bypass the procedural default rule to address 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
9
matter of practice, cannot claim ineffective assistance of counsel
on direct review, the procedural default rule will not prevent a
federal court from addressing the issue if petitioners had either
no counsel or ineffective counsel in the initial-review collateral
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.
See
Thus,
Petitioner erroneously relies on Trevino and Martinez.
Petitioner also contends that his actual innocence ought to
prevent application of the statute of limitations.
2 at 12-13.)
(Docket Entry
The United States Supreme Court has recognized that
a showing of actual innocence may overcome the one-year statute of
limitations.
1924, 1928
McQuiggin v. Perkins, ___ U.S. ___, ___, 133 S. Ct.
(2013).
However,
the
Court
also
recognized
that
showings of actual innocence “are rare,” and that a petitioner must
demonstrate
that
no
reasonable
juror
could
petitioner guilty beyond a reasonable doubt.
vote
Id.
to
find the
In this case,
Petitioner provides a copy of an SBI report (Docket Entry 2-3 at 4,
17-19), letters written in Spanish (id. at 13-16, 24),8 a letter
8
“It is clear, to the point of perfect transparency, that
federal court proceedings must be conducted in English.” United
States v. Rivera-Roasio, 300 F.3d 1, 5 (1st Cir. 2002); see also
Rivas-Montano v. United States, Nos. 8:03-cr-47-T-24EAJ, 8:06-cv852-T-24-EAJ, 2006 WL 1428507 (M.D. Fla. May 22, 2006)
(unpublished) (citing cases). Because Petitioner submitted these
letters in Spanish, the undersigned cannot rely on them in
10
written in English (id. at 23), and medical notes (id. at 21-22,
25-26).
Petitioner relies heavily on the fact that the State did not
find his semen or DNA on the victim or the items tested as proof of
his innocence.
(See, e.g., Docket Entry 2-2 at 8, 11, 16, 17, 22.)
However, the State’s inability to discover his semen or DNA on the
victim does not, by itself, establish his innocence.
In North
Carolina, none of the other charged offenses require evidence of
semen to convict.
See N.C. Gen. Stat. §§ 14-27.2, 14-27.4, 14-
202.1 (2010); see also State v. Williams, 314 N.C. 337, 351 333
S.E.2d 708, 718 (1985) (holding that “the emission of semen need
not be shown to prove the offense of rape”).
Moreover, the
additional items submitted by Petitioner do not demonstrate his
actual innocence.
Furthermore, Petitioner’s guilty plea undercuts
his argument that he “claimed his [i]nnocence from day one . . . .”
(Docket Entry 9 at 6 (emphasis removed).) In this case, Petitioner
has not presented new evidence to demonstrate that “‘no juror,
acting reasonably, would have voted to find him guilty beyond a
evaluating Petitioner’s instant Petition. See Zuniga v. Effler,
474 F. App’x 225, 225 (4th Cir. 2012) (holding that the district
court did not have a duty to translate a party’s submissions into
English). However, the undersigned will consider the letter in
English, which appears to translate one of the letters in Spanish
into English. Moreover, it appears that Petitioner submitted the
same letter twice. (Compare Docket Entry 2-3 at 13, with id. at
24.)
11
reasonable doubt.’”
McQuiggin, 133 S. Ct. at 1928 (quoting Schlup
v. Delo, 513 U.S. 298, 329 (1995)).
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
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. 2005).
Furthermore, Petitioner’s ability to
file his MARs and to petition for a writ of certiorari in state
court, notwithstanding these conditions, undermine his request for
tolling.
12
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 28, 2015
13
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