WILSON v. PERRY

Filing 9

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 09/19/2014 as set out herein. ORDERED that the respondent's motion to dismiss, (Doc. 5 ), is GRANTED. A certificate of appealability shall not issue.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DONALD GREG WILSON,
Petitioner,
v.
FRANK L. PERRY,
Respondent.

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1:14-CV-576

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Petitioner Donald Wilson is a prisoner of the State of North Carolina, having been
convicted of state charges in 1993. He has filed a petition for writ of habeas corpus,
which the respondent seeks to dismiss. Because the petition was filed well outside the
one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty
Act and because Mr. Wilson has not sufficiently alleged a basis for tolling, the motion
will be granted.
According to the petition and the documents attached, the petitioner Donald
Wilson pled guilty to state charges in 1993. (Doc. 2-1 at 32.) He did not appeal, (Doc. 2
at 2), and he did not file a Motion for Appropriate Relief in state court until 2001. (Doc.
6-2.) That MAR was denied in 2003. (Doc. 6-3.) He filed a second MAR in February
2014, (Doc. 2-1 at 10), which was denied on April 24, 2014. (Doc. 2-1 at 9.) Mr. Wilson
filed the pending petition for writ of habeas corpus on July 9, 2014. (Doc. 2.)

It is undisputed that Mr. Wilson’s petition was filed outside the time period
allowed by the Antiterrorism and Effective Death Penalty Act.1 His claims that his
“sentence was grossly disproportionate violating the Equal Protection Clause and [the]
Cruel and Unusual Punishment Clause,” (Doc. 2 at 5), arose when he pled guilty and was
sentenced, as did his claim that there was no factual basis for his guilty plea and that he
was sentenced “out of the mitigated range” without his agreement. (Doc. 2 at 8.) None
of the bases of his claims that his lawyer was ineffective are based on newly discovered
evidence, and all should have become apparent to Mr. Wilson by the time the limitations
period expired, which was essentially four years after his guilty plea. See supra note 1.
His claim that he should receive the benefit of 2009 changes to North Carolina’s
sentencing laws (Doc. 2 at 7, adopting claim made at Doc. 2-1 at 16-19) arose, at the
latest, when that statute was amended in 2009. Thus, all are outside the one-year statute
of limitations in AEDPA.
Mr. Wilson contends that the Court should grant him an “exemption” to the
limitations period and cites Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012);
Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911 (2013), and McQuiggin v. Perkins, ___
U.S. ___, 133 S. Ct. 1924 (2013). None of these cases help Mr. Wilson.
Martinez and Trevino each addressed whether a procedural bar, rather than a time
bar, should apply to an ineffective assistance of counsel claim from a state habeas
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See Brown v. Angelone, 150 F.3d 370, 374 (4th Cir. 1998) (holding that a prisoner whose
statutory right to seek federal habeas relief accrued prior to the AEDPA had one year after its
effective date – April 23, 1997 – to file a § 2254 petition).

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proceeding. Thus, Martinez and Trevino are inapplicable to the determination of
untimeliness under the AEDPA one-year statute of limitations. See Arthur v. Thomas,
739 F.3d 611, 630 (11th Cir. 2014) (declining to extend Martinez and Trevino rules to
time-barred § 2254 petitions); see, e.g., United States ex rel. Ames v. Lemke, No. 13 C
2826, 2013 WL 5718206, at *4 (N.D. Ill. Oct. 21, 2013) (holding Martinez and Trevino
rules do not concern excuse of untimely petition); Stromberg v. Varano, No. 09–401,
2012 WL 2849266, at *5 n.37 (E.D. Pa. July 11, 2012) (noting Martinez exception does
not alleviate petitioner's burden to overcome AEDPA statute of limitations); Perez v.
Williams, No. 2:12–cv–00605-GMN-VCF, 2012 WL 2389669, at *2 n.1 (D. Nev. June
25, 2012) (noting time-barred petition unaffected by Martinez decision).
Nor does McQuiggin assist Mr. Wilson. The Supreme Court in McQuiggin held
that “actual innocence, if proved, serves as a gateway through which a petitioner may
pass” despite expiration of the one-year statute of limitations in AEDPA. ___ U.S. at
___, 133 S. Ct. at 1928. However, cognizable claims of “actual innocence” are
“extremely rare.” Id.; see also U.S. v. Jones, 758 F.3d 579, 583 (4th Cir. 2014). To
establish actual innocence, “a petitioner must show that it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup
v. Delo, 513 U.S. 298, 327 (1995); see McQuiggin, ___ U.S. at ___, 133 S. Ct. at 1935.
“To be credible, such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence . . . that was not presented at trial.”
Schlup, 513 U.S. at 324.

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Mr. Wilson first claimed that he was actually innocent, arguably, in his 2014
MAR, where he alleged without further detail that he was convicted “of a crime that he
did not committ (sic).” (Doc. 2-1 at 15.) In the pending § 2254 petition, he made a
similarly conclusory allegation. (Doc. 2 at 14.) In his brief objecting to dismissal, he
repeats the conclusory assertion that he pled guilty to “a crime that he did not commit,”
(Doc. 8 at 6), and asserts without detail that he “claimed his [i]nnocence from day one.”
(Id.) Yet that is belied by the court record. In his 2001 MAR, where he was represented
by counsel, his lawyers noted that he “voluntarily” confessed to the crimes and made no
argument that the confession was coerced or untruthful. (Doc. 6-2 at p. 8 ¶ 22.) Rather,
they sought only a resentencing. (Doc. 6-2 at 16.) Nowhere in that MAR did Mr. Wilson
assert actual innocence. (See Doc 6-2.) Mr. Wilson’s conclusory claims now of actual
innocence are insufficient to be credible, even at this preliminary stage.
IT IS THEREFORE ORDERED that the respondent’s motion to dismiss, (Doc.
5), is GRANTED.
A certificate of appealability shall not issue.
This the 19th day of September, 2014.

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UNITED STATES DISTRICT JUDGE

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