BEASLEY EL v. STATE OF NORTH CAROLINA
Filing
3
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 06/17/2014as set out herein. ORDERED that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. RECOMMENDED that the Petition (Docket Entry 2 ) be dismissed.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARION BEASLEY EL, JR.,
Petitioner,
v.
STATE OF NORTH CAROLINA,
Respondent.
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1:14CV448
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, filed
a petition seeking a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 and an application to proceed in forma pauperis.
Entries 1, 2.)
(Docket
For the reasons that follow, the Court should
dismiss the Petition.
BACKGROUND
According to the Petition and attached exhibits, on February
5, 1998, the Superior Court of Forsyth County entered judgment
against Petitioner for first-degree murder and two counts of
robbery with a dangerous weapon in cases 96 CRS 25622 and 96 CRS
25756, with judgment arrested on one of the robbery counts.
(Docket Entry 2, §§ 1, 2, 5; Docket Entry 2-1 at 7, 8; Docket Entry
2-2 at 1-1; Docket Entry 2-3 at 1.)
Sentenced to life without
parole plus a consecutive 129 to 164 months of imprisonment (Docket
Entry 1, § 3), Petitioner filed a direct appeal (id., § 9(a)).
The
North Carolina Court of Appeals initially dismissed the appeal on
procedural grounds (see Docket Entry 2, § 9(c); Docket Entry 2-1 at
9),
but
ultimately
granted
review
via
certiorari
and
denied
Petitioner’s appeal on its merits, leading Petitioner to seek
further
review
from
the
North
Carolina
dismissed the appeal on February 5, 2009.
Supreme
Court,
which
State v. Beasley, No.
COA07-1157, 2008 WL 2582478, 191 N.C. App. 252 (table), 662 S.E. 2d
578 (table),
(July 1, 2008) (unpublished), appeal dismissed, 363
N.C. 131, 673 S.E.2d 659 (2009).
Petitioner did not file a
petition for certiorari with the United States Supreme Court.
(Docket Entry 2, § 9(h).)
On April 16, 2010, Petitioner filed a motion for appropriate
relief (MAR) with the Forsyth County Superior Court, which that
court later denied on February 24, 2011. (Docket Entry 2, § 11(a);
Docket Entry 2-1 at 7; Docket Entry 2-2 at 22.)
Petitioner then
filed a petition for certiorari with the North Carolina Court of
Appeals, which denied relief on May 3, 2011.
Beasley v. State of
North Carolina, No. P11-330 (N.C. App. May 3, 2011) (unpublished).1
Petitioner filed a second MAR in Forsyth County on October 16,
2013, which the trial court denied on November 12, 2013.
Entry 2, § 12, Ground Two (d); Docket Entry 2-3 at 1.)
(Docket
The record
does not reflect that Petitioner then filed anything further in the
state courts before bringing his Petition in this Court.
DISCUSSION
Petitioner raises two claims for relief in this Court: 1) that
the trial court erred by denying a challenge to the jury panel
1
The Petition acknowledges that the North Carolina Court of Appeals denied
certiorari review, although it refers to the date of denial as either “May 2011”
(Docket Entry 2, § 9(b)) or “29 Day of April 2011 (id. § 12, Ground One (d)).
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(Docket Entry 2, § 12 Ground One(a)); and 2) that, for the reasons
set out in Petitioner’s second MAR, there exists a “question of
propia persona sui juris averment of jurisdiction” (id. § 12,
Ground Two(a)).
Rule 4 of the Rules Governing Section 2254 Cases,
states:
If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and direct
the clerk to notify the petitioner.
In conducting its review under Rule 4, the Court “has the power to
raise affirmative defenses sua sponte,” including a statute of
limitations defense under 28 U.S.C. § 2244(d).
277 F.3d 701, 706 (4th Cir. 2002).
Hill v. Braxton,
However, the Court may only
dismiss a petition as untimely under Rule 4 if the untimeliness
appears clear on the petition’s face and the petitioner has notice
of the statute of limitations, as well as an opportunity to address
the issue.
Id. at 706-07.
Here, Petitioner used the standard § 2254 form to file his
Petition.
(See Docket Entry 2.)
That form includes this section:
“TIMELINESS OF PETITION: If your judgment of conviction became
final over one year ago, you must explain why the one-year statute
of limitations as contained in 28 U.S.C. § 2244(d) does not bar
your petition.”
(Id., § 18.)
Petitioner responded at length with
an explanation of why he believed his petition remains timely and
he indicated no confusion concerning the statute of limitations.
(See id.)
Therefore, Petitioner not only received notice and a
chance
respond,
to
but
took
advantage
of
that
opportunity.
Accordingly, under Hill, the Court may consider whether or not the
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statute of limitations clearly bars the Petition. See, e.g., Smith
v. Shanahan, No. 1:13-cv-166, 2013 WL 3280022, at *4 n.2 (W.D.N.C.
June
27,
2013)
(unpublished)
(ruling
no
further
warning
or
explanation necessary under Hill where the petitioner addressed the
statute of limitations and indicated no confusion); Graves v.
Lewis, No. 3:12-cv-480-RJC, 2013 WL 1190287, at *2 n.2 (W.D.N.C.
Mar. 22, 2013) (unpublished) (same), appeal dismissed, 532 F.
App’x. 327 (4th Cir. 2013).
In order to assess the applicability of the statute of
limitations, the Court first must determine when Petitioner’s oneyear period to file his § 2254 Petition commenced. In this regard,
the United States Court of Appeals for the Fourth Circuit has
explained that:
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.
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Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008) (emphasis
added).
Here, Petitioner could have discovered the factual predicates
for both of his claims through reasonable diligence at the time of
his conviction in 1998.
Nor does any basis exist to conclude that
subparagraphs (B) or (C) of § 2254(d)(1) could apply in this case.
Therefore,
§
2241(d)(1)(A)
prescribes
the
latest
possible
commencement date for the one-year limitations period and the Court
thus must ascertain the date on which Petitioner’s convictions
became final on direct review or the date when the time for seeking
such review expired.
As stated above, the North Carolina Supreme Court dismissed
Petitioner’s direct appeal on February 5, 2009.
His convictions
became final 90 days later, on May 6, 2009, when the time to seek
a writ of certiorari from the United States Supreme Court expired.
See Clay v. United States, 537 U.S. 522, 527 (2003) (holding that
“[f]inality attaches when this Court affirms a conviction on the
merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition
expires” (internal citations omitted)); see also Sup. Ct. R. 13.1
(allowing petitioners 90 days after highest state appellate court’s
denial to file for writ of certiorari).
The limitations period
then ran until Petitioner filed his first MAR in the trial court on
April 16, 2010, leaving him only twenty days to file in this Court.
At that point, the filing of the MAR tolled the federal habeas
deadline
for
“the
entire
period
-5-
of
state
post-conviction
proceedings, from initial filing to final disposition by the
highest
court
(whether
decision
on
the
merits,
denial
of
certiorari, or expiration of the period of time to seek further
appellate review),” Taylor v. Lee, 186 F.3d 557, 561 (4th Cir.
1999).
Therefore, Petitioner’s time to file began to run again on
May 3, 2011, when the North Carolina Court of appeals denied his
certiorari petition, and expired twenty days later on May 23, 2011.
The Court did not receive the present Petition until June 2,
2014, or more than three years later.
A document accompanying the
Petition suggests that Petitioner signed it on October 8, 2013 (see
Docket Entry 2 at 16), but even that date falls more than two years
out of time under § 2244(d).
As discussed in the Background
section, Petitioner also filed a second MAR in the trial court on
October 16, 2013.
limitations
However, that MAR cannot toll the statute of
because
state
filings
made
after
the
federal
limitations period expires do not restart or revive the filing
period.
See Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000).
In the end, accepting everything in the Petition and its
exhibits as true, the Petition remains more than two years out of
time.
Petitioner
offers
no
viable
explanation
for
this
untimeliness and no facts that could support equitable tolling.
(See Docket Entry 2, § 18.)
Instead, he only notes that his first
appellate attorney’s failure to perfect his appeal resulted in the
delay between his conviction and the denial of his direct appeal in
2009.
(Id.)
He fails to identify any basis to excuse his
subsequent delay in filing his MARs or his Petition in this Court.
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Moreover, Petitioner has filed ten prior cases of various sorts in
this Court.
do so.2
Clearly, he knows how to make federal filings and can
The Petition is untimely and should be dismissed.
Regarding Petitioner’s second claim for relief, another reason
for dismissal also exists.
That claim arises from Petitioner’s
frivolous belief that, by subjecting him to a criminal trial, “the
State
N.C.
National.”
has
denied
[him]
his
status
of
(Docket Entry 2, § 12, Ground Two.)
Moorish
American
Petitioner is not
the first person to raise this or similar claims based on an
alleged status as a “Moorish American” or related terms and courts
routinely
reject
such
claims.
See
Pitt-Bey
v.
District
of
Columbia, 942 A.2d 1132, 1136 (D.C. 2008); Albert Fitzgerald
Brockman-El v. N.C. Dept. of Corr., No. 1:09CV633, Docket Nos. 2,6,
7 (M.D.N.C. 2009), appeal dismissed, 373 F. App’x. 332 (4th Cir.
2010).
A person’s alleged nationality or ethnicity does not
somehow absolve that person of criminal responsibility. Because it
does plainly appear from the Petition and attached exhibits that
Petitioner is not entitled to any relief on this claim, the Court
should dismiss this claim for this additional reason.
2
In fact, Petitioner filed a previous petition under § 2254 in Beasley v.
Keller, No. 1:11CV524 (M.D.N.C.), only to eventually have the case dismissed by
the Court without prejudice because he chose to submit a series of frivolous
filings rather than simply pay the $5.00 filing fee as ordered. That previous
petition, which Petitioner mailed on June 26, 2011 and which the Court received
on July 1, 2011, was also untimely, albeit much closer to the applicable deadline
of May 23, 2011.
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CONCLUSION
The Petition fails as a matter of law on its face.
pauperis
status
will
be
granted
for
the
sole
In forma
purpose
of
recommending dismissal.
IT IS THEREFORE ORDERED that in forma pauperis status is
granted
for
the
sole
purpose
of
entering
this
Order
and
Recommendation.
IT IS RECOMMENDED that the Petition (Docket Entry 2) be
dismissed.
This, the 17th day of June, 2014.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
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