BURTON v. SOLOMON
Filing
11
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/10/2015; that Petitioner's Motion to Withdraw Habeas Corpus Proceeding without Prejudice (Docket Entry 9 ) be denied, that Respondent's Motion for Summary Judgment (Docket Entry 5 ) be granted, that the Petition (Docket Entry 2 ) be denied, and that Judgment be entered dismissing this action, without issuance of a certificate of appealability. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL WAYNE BURTON,
Petitioner,
v.
GEORGE T. SOLOMON,
Respondent.
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1:14CV370
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 September 28, 2011, in the Superior Court of Durham
County, a jury found Petitioner guilty of first degree arson in
case 11 CRS 050743, and the trial court sentenced Petitioner to 67
to 90 months imprisonment.
appealed.
(Id., ¶ 9.)
Petitioner
On December 4, 2012, the North Carolina
Court of Appeals affirmed.
735 S.E.2d 400 (2012).
(See id., ¶¶ 1-6.)1
See State v. Burton, __ N.C. App. __,
On January 7, 2014, Petitioner sought
certiorari review with the North Carolina Supreme Court.
Docket Entry 2, ¶ 9(g); Docket Entry 6-6.)2
(See
The North Carolina
1
Neither Petitioner nor Respondent has provided a copy of
Petitioner’s Judgment and Commitment forms.
2
Petitioner dated the certiorari petition on December 23,
2013, but the Supreme Court did not file it until January 7, 2014.
(Compare Docket Entry 6-6 at 13, with Docket Entry 6-7 at 2.) As
either date leads to a recommendation of dismissal, the undersigned
need not address the issue of which date controls.
Supreme Court denied the certiorari petition on January 23, 2014.
(See Docket Entry 6-7.)
Finally, Petitioner signed the instant Petition, under penalty
of perjury, and dated it for mailing on April 28, 2014 (Docket
Entry 2 at 10), and the Court stamped and filed the Petition on May
1, 2014 (id. at 1).3
Respondent filed a Motion for Summary
Judgment (Docket Entry 5), and Petitioner responded (Docket Entry
8).
In addition, Petitioner filed a Motion to Withdraw Habeas
Corpus
Proceeding
Without
Prejudice
to
Allow
[Petitioner]
to
Exhaust his State Remedies (Docket Entry 9), which Respondent
opposed (Docket Entry 10).
should
grant
Respondent’s
For the reasons that follow, the Court
instant
Motion
because
Petitioner
submitted his Petition outside of the one-year limitations period,4
and the Court should deny Petitioner’s instant Motion for futility.
Petitioner’s Claims
The Petition raises three grounds for relief: (1) “The trial
court erred when it denied the Defense’s Motion for Dismissal at
the close of evidence” (Docket Entry 2 at 3); (2) “The [trial]
court erred in not granting the Defense’s Motion for a Continuance
3
Under Rule 3(d) of the Rules Governing Section 2254 Cases in
United States District Courts, the Court deems the instant Petition
filed on April 28, 2014, the date Petitioner signed the Petition
(under penalty of perjury) as submitted to prison authorities.
(See Docket Entry 2 at 10.)
4
Because the Petition qualifies as untimely, the undersigned
need not address Respondent’s alternative arguments.
2
to present evidence of an alibi defense” (id. at 4); and (3)
“Defense counsel was ineffective because [he] failed to motion for
a mistrial when a witness gave inadmissible evidence” (id. at 5).5
Respondent’s Motion for Summary Judgment
Respondent moves for summary judgment on the merits of the
Petition (Docket Entry 6 at 3-12) and for untimeliness (id. at 1220).
In order to assess Respondent’s statute of limitations
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
5
Petitioner generally has used only capital letters in his
written filings.
(See, e.g., Docket Entry 2.)
For ease of
reading, this Memorandum Opinion employs standard capitalization
conventions when quoting such filings.
3
(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 determine timeliness on claim-by-claim basis.
The Court
See Pace v.
DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).
Neither Petitioner nor Respondent contends that subparagraphs
(B), (C), or (D) apply in this situation.
4, 5, 6, 8, 9, 10.)
(See Docket Entries 2,
However, Petitioner argues that the statute of
limitations should not prohibit the Court from addressing the
merits of his case.
(See Docket Entry 8.)
must
under
decide
when,
subparagraph
Thus, the undersigned
(A),
the
statute
of
limitations commenced.
Under subparagraph (A), Petitioner’s conviction became final,
for purposes of the statute of limitations, on January 8, 2013 the final day on which he could have appealed or petitioned for
discretionary review of the North Carolina Court of Appeal’s
decision.
See N.C.R. App. P. 14(a) (requiring a notice of appeal
within fifteen days after the Court of Appeals issues its mandate),
15(b) (requiring a petition be filed within fifteen days after the
Court of Appeals issues its mandate), 32(b) (stating that a mandate
shall issue twenty days after the opinion has been filed unless the
court orders otherwise); 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);
4
Saguilar v.
Harkleroad,
348
F.
Supp.
2d
595
(M.D.N.C.
2004)
(holding that a petitioner’s case became final thirty-five days
after the Court of Appeals issued its opinion and petitioner did
not petition for discretionary review), appeal dismissed, 145 F.
App’x 444 (4th Cir. 2005).
The statute of limitations then ran, unimpeded, from January
8, 2013, until its expiration on January 8, 2014, and Petitioner
did not file his instant Petition until April 28, 2014 (Docket
Entry 2 at 10).
Although, shortly before the end of the one-year
period, Petitioner petitioned for certiorari review with the North
Carolina Supreme Court, that petition did not toll the statute of
limitations.
See Saguilar, 348 F. Supp. 2d at 601.
Therefore,
Petitioner filed his Petition untimely.
Despite
the
instant
Petition’s
untimeliness,
Petitioner
requests the Court to address his claims on the merits.
Docket Entry 8.)
(See
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 that 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.
5
Here, Petitioner argues the delay and the eventual denial of
assistance by North Carolina Prisoner Legal Services, lack of
access to a law library, and his actual innocence ought to toll the
statute
of
limitations.
(See
Docket
Petitioner’s arguments lack merit.
Entry
8
at
1-2,
7.)
As to Petitioner’s claims
regarding North Carolina Prisoner Legal Services and the lack of
access to a law library, first, he provides nothing to support
these accusations, and unsupported, conclusory allegation will not
invoke equitable tolling, see San Martin v. McNeil, 633 F.3d 1257,
1268
(11th
Cir.
2011)
(“Mere
conclusory
allegations
insufficient to raise the issue of equitable tolling.”).
are
Second,
delays by North Carolina Prisoner Legal Services do not constitute
sufficient grounds for equitable tolling, see 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) (unpublished), and the
State does not have an obligation to provide a law library so long
as a prisoner has access to North Carolina Prisoner Legal Services,
see
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).
6
Third, even assuming these
claims constituted grounds for relief, Petitioner has not alleged
any facts to demonstrate the necessary diligence in pursuing his
rights to justify equitable tolling.
Therefore, the Court should
not toll the one-year limitations period.
Petitioner also contends that his actual innocence ought to
prevent application of the statute of limitations.
8 at 7.)
(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 ruled 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 has come forward with only his conclusory claims of
innocence.
(Docket Entry 8 at 7 (“Petitioner[] has shown actual
innocent [sic] of arson charge . . . .”).)
Thus, Petitioner has
not shown that “‘it is more likely than not that no reasonable
juror would have convicted [Petitioner]’” McQuiggin, 133 S. Ct. at
1933 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
See,
e.g., Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997) (en
banc) (“[A] bare, conclusory assertion that [a petitioner] is
actually
innocent
is
not
sufficient
to
invoke
the
[Schlup]
exception. Were protestation of innocence the only prerequisite to
application of this exception, we fear that actual innocence would
7
become a gateway forever open to habeas petitioners’ defaulted [or
untimely] claims.”
(internal quotation marks omitted)); Wilson v.
Perry, No. 1:14-CV-576, 2014 WL 4685405, at *2 (M.D.N.C. Sept. 19,
2014) (unpublished) (Eagles, J.)
(“[The petitioner’s] conclusory
claims now of actual innocence are insufficient to be credible,
even at this preliminary stage.”), appeal dismissed, 588 F. App’x
216 (4th Cir. 2014).
In sum, Petitioner filed his Petition untimely, and the Court
should not equitably toll the statute of limitations.
Petitioner’s Motion to Withdraw
After Petitioner filed his Response to Respondent’s instant
Motion, Petitioner moved to withdraw his Petition.
(See Docket
Entry 9.) Respondent opposes that request. (See Docket Entry 10.)
The Court should deny Petitioner’s instant Motion.
In general, the Rules Governing Section 2254 Cases apply to
cases brought under Section 2254.
Sect.
2254
Cases.
However,
See Rule 1(a), Rules Governing
“[t]he
Federal
Rules
of
Civil
Procedure, to the extent that they are not inconsistent with any
statutory provisions or [the Rules Governing Section 2254 Cases],
may be applied to a proceeding under [the Rules Governing Section
2254 Cases].”
Rule 12, Rules Governing Sect. 2254 Cases.
Under
the Federal Rules of Civil Procedure, where (as here (see Docket
Entry 4)) an answer has been filed, “an action may be dismissed at
the plaintiff’s request only by court order, on terms that the
8
court considers proper.”
Fed. R. Civ. P. 41(a)(2).
Numerous
courts have treated said Rule as applicable to actions under
Section 2254.
See, e.g., Hicks v. Glebe, No. C08–5672FDB, 2009 WL
2392150, at *2 (W.D. Wash. July 31, 2009) (unpublished); Baca v.
Rider, No. CV–08–8030–PHX–GMS(MEA), 2008 WL 4905494, at *2 (D.
Ariz. Nov. 13, 2008) (unpublished).
In this case, Petitioner sought dismissal without prejudice
only after Respondent sought summary judgment, inter alia, on
statute
of
limitations
grounds.
“The
Fourth
Circuit
has
specifically held that a motion to voluntarily dismiss under Rule
41(a)(2) should be denied when a plaintiff seeks to circumvent an
expected adverse result, and that ‘denial of voluntary dismissal is
appropriate where summary judgment is imminent.’”
Nesari v.
Taylor, 806 F. Supp. 2d 848, 861 (E.D. Va. 2011) (quoting Skinner
v. First Am. Bank of Va., No. 93–2493, 64 F.3d 659 (table), 1995 WL
507264, at *2 (4th Cir. Aug. 28, 1995) (unpublished)).
In light of
this authority, the Court should not allow Petitioner to avoid
final adjudication of Respondent’s summary judgment motion.
Baca, 2008
WL
4905494,
at
*2
(declining to
permit
See
voluntary
dismissal where “[the] [p]etitioner ha[d] filed his motion to
withdraw [the petition under Section 2254] only . . . after [the]
respondents expended significant time and effort in preparing their
answer and response”).
9
Additionally, even if the Court granted Petitioner’s instant
Motion and allowed him to return to state court to exhaust his
state-law remedies, it would not change the untimeliness of this
Petition.
Accordingly, any subsequently-filed petition would fail
as untimely.
The Court, therefore, should deny Petitioner’s
instant Motion.
See Threet v. Howes, No. 1:11-cv-159, 2011 WL
5088717, at *5 (W.D. Mich. Oct. 25, 2011) (unpublished) (“[T]o the
extent [the] [p]etitioner requests a voluntary dismissal of his
case to exhaust his state-court remedies . . ., [his request] is
also futile. As previously stated, his [habeas] claim is barred by
the
statute
of
limitations
so
there
is
no
need
for
[the]
[p]etitioner to return to state court to exhaust his state-court
remedies.”).
Finally, granting Petitioner’s instant Motion would likely
result in the imposition of a procedural bar.
F.3d 676, 683 (4th Cir. 2001).
See Rose v. Lee, 252
North Carolina General Statute
Section 15A-1419 prohibits a court from considering claims that
could have been presented on appeal or in a prior motion for
appropriate relief - absent good cause or a resulting fundamental
miscarriage of justice.
Here, Petitioner could have raised these
claims on direct review to the North Carolina Supreme Court, but he
did not file a petition for discretionary review.
Therefore, the
state court would likely deem a subsequently filed motion for
appropriate relief procedurally barred.
10
Moreover, Petitioner has
not shown good cause or that a fundamental miscarriage of justice
would result from procedurally barring his claims.
Simply put, Petitioner has presented an improper and pointless
request to withdraw his Petition.
IT
IS
THEREFORE
RECOMMENDED
that
Petitioner’s
Motion
to
Withdraw Habeas Corpus Proceeding without Prejudice (Docket Entry
9) be denied, that Respondent’s Motion for Summary Judgment (Docket
Entry 5) be granted, that 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
February 10, 2015
11
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