KUPLEN v. PERRY
Filing
26
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/20/2015. Petitioner filed the instant Petition untimely with respect to Grounds 1, 2, and 3, and Petitioner cannot rely on G round 4 as a basis for federal habeas relief. Therefore, the Court should grant Respondent's instant Motion and dismiss the Petition. RECOMMENDED that Respondent's Motion to Dismiss (Docket Entry 9 ) be granted, that the Petiti on (Docket Entry 2 ) be denied, and that Judgment be entered dismissing this action, without issuance of a certificate of appealability. FURTHER RECOMMENDED that Petitioner's pending motions (Docket Entries 14 , 15 , 24 ) be denied as moot.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN EDWARD KUPLEN,
Petitioner,
v.
FRANK L. PERRY,
Respondent.
)
)
)
)
)
)
)
)
)
1:14CV598
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 May 2, 1984, in the Superior Court of Guilford
County, a jury found Petitioner guilty of attempted first degree
rape, first degree sexual offense, and assault with a deadly weapon
with intent to kill inflicting serious injury, in cases 83 CRS
79897-99,
and he
received sentences
of
twenty years
for
the
attempted rape, twenty years for the assault with a deadly weapon
with intent to kill inflicting serious injury, and life for the
sexual offense, all to be served consecutively.
(Id., ¶¶ 1-6.)1
Petitioner appealed. (Id., ¶ 9.) The North Carolina Supreme Court
affirmed.
1
State v. Kuplen, 316 N.C. 387, 343 S.E.2d 793 (1986).
Neither Petitioner nor Respondent has provided a copy of
Petitioner’s Judgment and Commitment forms.
On June 6, 2013,2 the trial court filed Petitioner’s Motion
for Appropriate Relief (“MAR”). (See Docket Entry 3-2 at 1; Docket
Entry
10-2.)3
On
Petitioner’s MAR.
August
5,
2013,
(Docket Entry 3-2.)
the
trial
court
denied
On September 6, 2013,
Petitioner sought certiorari review with the North Carolina Court
of Appeals.
(Docket Entry 10-5.)
The North Carolina Court of
Appeals denied certiorari review on September 24, 2013.
Entry 3-3.)
(Docket
On October 15, 2013, Petitioner filed both a petition
for discretionary review (Docket Entry 10-7) and a notice of appeal
(Docket Entry 10-8) with the North Carolina Supreme Court.
The
North Carolina Supreme Court dismissed both requests on December
18, 2013.
(Docket Entries 3-4, 3-5.)
Finally, Petitioner signed the instant Petition, under penalty
of perjury, and dated it for mailing on July 13, 2014 (Docket Entry
2 at 14), and the Court stamped and filed the Petition on July 17,
2014 (id. at 1).4
Respondent moved to dismiss the Petition as
2
Although Petitioner dated his MAR on May 31, 2013, the trial
court did not file it until June 6, 2013. (Compare Docket Entry 32 at 1, with Docket Entry 10-2 at 28.) Because the differing dates
do not affect the recommendation of dismissal, the undersigned will
use the dates listed as filed by the respective courts.
3
In the Petition, Petitioner
pursued a MAR, writ of certiorari,
review, and a notice of appeal for
proceedings. (See Docket Entry 2, ¶
4
failed to indicate that he
petition for discretionary
his state collateral relief
11.)
Under Rule 3(d) of the Rules Governing Section 2254 Cases in
United States District Courts, the Court deems the instant Petition
filed on July 13, 2014, the date Petitioner signed the Petition
(under penalty of perjury) as submitted to prison authorities.
2
untimely and meritless (Docket Entry 9), and Petitioner responded
(Docket Entry 20).
For the reasons stated below, the undersigned
recommends granting Respondent’s instant Motion and dismissing the
Petition.
In addition, Petitioner has also filed several other
motions that the Court need not address given the recommendation of
dismissal.
Petitioner’s Claims
The Petition raises four grounds for relief: (1) “Trial court
lacked jurisdiction over the person of the [P]etitioner or subject
matter” (Docket Entry 2 at 5); (2) “Ineffective assistance of trial
counsel” (id. at 6) because counsel failed to present or move to
exclude evidence according to Petitioner’s wishes (Docket Entry 3
at 6-11);5 (3) “Ineffective assistance of first appellate counsel[]
and second appellate counsel” (Docket Entry 2 at 8) because they
failed
to
assign
as
error
numerous
issues
and
abandoned
Petitioner’s criminal appeal (Docket Entry 3 at 11-14);6 and (4)
(See Docket Entry 2 at 14.)
5
Petitioner lists thirty-eight reasons why his trial counsel
provided ineffective assistance. (See Docket Entry 3 at 6-11.)
All of the reasons provided, save his claim that trial counsel
allowed evidence to be destroyed, occurred before or during trial.
(See id.)
Because the undersigned recommends dismissal of the
Ground as untimely, no need exists to list each reason separately.
6
Petitioner lists thirty-six reasons why his appellate
counsel provided ineffective assistance. (See Docket Entry 3 at
11-14.) All of the reasons provided, save his claim that counsel
allowed evidence to be destroyed, occurred before or during his
appeal. Because the undersigned recommends dismissal of the Ground
3
“[North Carolina] Court of Appeals lacked jurisdiction over the MAR
judge 8-5-2013 Order based upon his disqualification to render any
order” (Docket Entry 2 at 10).
Timeliness
Respondent moves to dismiss Grounds 1, 2, and 3 as untimely,
see 28 U.S.C. § 2244(d)(1).
to
assess
Respondent’s
(Docket Entry 10 at 4-14.)
statute
of
limitations
In order
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;
(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
as untimely, no need exists to list each reason separately.
4
discovered
diligence.
through
the
exercise
of
due
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008).
must assess timeliness on claim-by-claim basis.
The Court
See Pace v.
DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).
Neither Petitioner nor Respondent argue that subparagraphs (B)
or (C) apply in this situation.
(See Docket Entries 2, 3, 7, 8, 9,
10, 13, 14, 15, 16, 17, 18, 20, 22, 23, 24, 25.)
However,
Respondent acknowledges that if subparagraph (D) does apply it
applies
only
to
Ground
4.
(See
Docket
Entry
10
at
8-9.)
Conversely, Petitioner does not address which subparagraph applies;
rather (perhaps acknowledging the untimeliness of the instant
Petition), Petitioner stringently challenges the constitutionality
and application of the one-year statute of limitations to his
Petition.
(See Docket Entry 2 at 13; Docket Entry 13 at 1; Docket
Entry 17 at 1; Docket Entry 22.)
subparagraph
(A)
applies
to
Thus, it appears uncontested that
Grounds
1,
2,
and
3,
and
that
subparagraph (D) applies, if at all, to Ground 4.
Under subparagraph (A), Petitioner’s convictions became final
on August 4, 1986 - 90 days after the North Carolina Supreme Court
issued its opinion upholding Petitioner’s convictions.
See Sup.
Ct. R. 13.1; Clay v. United States, 537 U.S. 522, 527 (2003).
However, after Petitioner’s convictions became final, Congress
enacted the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which included a new, one-year limitations period for
5
prisoners
to
§ 2244(d)(1).
file
habeas
corpus
petitions,
see
28
U.S.C.
This required prisoners with convictions occurring
before AEDPA’s enactment until April 24, 1997, to file a habeas
petition.
2000).
See Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir.
Petitioner therefore, had until April 24, 1997, to either
file his habeas petition or toll the statute by seeking state
collateral review.
Id. at 438.
Petitioner failed to do either;
therefore, the Petition expired as to Grounds 1, 2, and 3 on April
24, 1997.
Although Petitioner later filed a MAR in state court, by
that time, the statute of limitations had long since expired, and
that filing could not revive the 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). Accordingly, Petitioner filed his
Petition untimely.7
7
As to Petitioner’s claims that his trial and appellate
counsel provided ineffective assistance by allowing the State to
destroy his property/evidence from trial (see Docket Entry 3 at 1011, 12, 14), the trial court entered an Order allowing destruction
of the evidence on June 4, 1986 (Docket Entry 10-4 at 25), before
his conviction became final. Thus, applying subparagraph (D) would
not benefit Petitioner - even though he arguably did not discover
this Order until June 9, 2011 (see id. at 24) - because he could
have discovered it through public sources before his conviction
became final, see Wade v. Robinson, 327 F.3d 328, 333 (4th Cir.
2003), and the limitations period runs from the “latest” of the
potential starting points, see Green, 515 F.3d at 303. Regardless,
the enactment of AEDPA gave Petitioner until April 24, 1997, to
file his Petition. Thus, these claims qualify as untimely.
6
In an effort to allow the Court to address the merits of the
Petition,
Petitioner
launches
a
volley
of
attacks
on
the
constitutionality of AEDPA’s limitations period. (See Docket Entry
2 at 13; Docket Entry 22.)
Petitioner argues that Section 2244(d)8
does not apply to him9 because (1) “Congress/President cannot pass
unconstitutional laws mandating when noncapital defendants shall
file a state MAR” (Docket Entry 2 at 13; see also Docket Entry 22
at 1); (2) “Congress/President cannot pass unconstitutional laws
abridging [P]etitioner’s 1st Amendment right of access to the
court” (Docket Entry 2 at 13; see also Docket Entry 22 at 2); (3)
“Congress/President have exceeded their authority under Commerce
Clause, Article 1, Section 8(3) and Necessary and Proper Clause,
Article 1, Section 8(18) of the Constitution of the United States
if § 2244(d) is applied to [P]etitioner’s Writ” (Docket Entry 2 at
13; see also Docket Entry 22 at 1 (citing also the Spending Clause,
Tenth
Amendment,
and
Enforcement
Clause
of
the
Fourteenth
Amendment)); (4) “[P]etitioner’s right to the Great Writ is a
8
The undersigned previously granted Petitioner’s Motion to
Amend Petition for Writ of Habeas Corpus that amended the Petition
to reference “2244” instead of “2254” on page 14 of the Petition.
(See Text Order dated Aug. 18, 2014.)
9
To the extent Petitioner asserts an argument that AEDPA
generally does not apply to Petitioner, the Supreme Court has held
that AEDPA generally applies to all petitions filed after its
enactment date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); see
also Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Here,
Petitioner filed the instant Petition on July 13, 2014 (Docket
Entry 2 at 14), well after AEDPA’s effective date, so AEDPA does
apply to Petitioner, and this argument fails.
7
fundamental right preservative of all rights” (Docket Entry 2 at
13; see also Docket Entry 22 at 2 (citing the Suspension Clause));
and (5) “The [r]ecord affirmatively shows [P]etitioner’s wrongful
convictions
and
factual
innocence”
(Docket
Entry
22
at
2).
Petitioner fails to develop these arguments, aside from his actual
innocence claim (see Docket Entry 23), and relies on the Court to
do the work for him, which the Court should not do, see Hayes v.
Self-Help Credit Union, No. 1:13-CV-880, 2014 WL 4198412, at *2
(M.D.N.C. Aug. 22, 2014). Although Petitioner’s failure to support
his arguments
provides
a
basis
for
rejecting
them,
id., the
undersigned will address them in turn.
As to Petitioner’s first argument, contrary to his assertion,
AEDPA does not regulate when a non-capital prisoner may file for
state-collateral relief. See AEDPA, Pub. L. No. 104-132, 110 Stat.
1214 (1996).
Instead, AEDPA only regulates when a party may file
for federal habeas relief.
See Morales v. Yates, No. CV 08-0540-
AHM (RC), 2009 WL 150551, *4 (C.D. Cal. May 26, 2009) (unpublished)
(“AEDPA places no limitations on when a petitioner is able to file
applications
for
post-conviction
review
in
the
state
courts;
rather, it controls only when a petitioner may timely seek habeas
corpus relief in the federal courts.”).
Thus, this argument lacks
merit.
As
to
Petitioner’s
second
argument,
AEDPA’s
statute
of
limitations does not unconstitutionally restrict Petitioner’s right
8
to access the courts.
“[A] limitations period does not prevent an
individual from petitioning the government; it just explains when
he must do so.”
(per curiam).
Hill v. Dailey, 557 F.3d 437, 440 (6th Cir. 2009)
Thus, this argument lacks merit.
As to Plaintiff’s third argument, the United States Supreme
Court has long held that “the power to award the writ by any of the
courts of the United States must be given by written law, and []
have likewise recognized that judgments about the proper scope of
the writ are normally for Congress to make.”
Felker v. Turpin, 518
U.S. 651, 664 (1996) (internal citations and quotation marks
omitted).
Such statements acknowledge Congress’s authority to
prescribe the terms of the writ of habeas corpus and, consequently,
to enact AEDPA’s statute of limitations.
Thus, Petitioner’s
argument fails.
As to Petitioner’s fourth argument, he appears to mount a
Suspension Clause challenge.
Docket Entry 22 at 2.)
(See Docket Entry 2 at 13; see also
All of the Circuit Courts to address the
issue have held that AEDPA’s statute of limitations does not
violate the Suspension Clause.
(citing cases).
See, e.g., Dailey, 557 F.3d at 438
Thus, Petitioner’s argument fails.
As to Petitioner’s final argument, although the United States
Supreme Court has recognized that a showing of actual innocence may
excuse noncompliance with AEDPA’s one-year limitations period,
McQuiggin v. Perkins, ___ U.S. ___, ___, 133 S. Ct. 1924, 1928
9
(2013), the Court also ruled 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 has not made the requisite
showing.
The
support)
Petition
sixteen
lists
reasons
(without
why
elaboration
Petitioner
or
believes
evidentiary
the
record
demonstrates his actual innocence (see Docket Entry 23 at 3-4), but
this list does not satisfy the actual innocence exception, see
Schlup v. Delo, 513 U.S. 298, 324 (1995) (“To be credible, such a
claim
requires
petitioner
to
support
his
allegations
of
constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence—that was not presented at trial.”).
Petitioner cannot rely on his interpretation of the evidence and
his unsupported claim of innocence to satisfy Schlup. See 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 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)
10
(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 other words, Petitioner has not demonstrated that
“‘it is more likely than not that no reasonable juror would have
convicted [him],’” McQuiggin, 133 S. Ct. at 1933 (quoting Schlup,
513 U.S. at 329).10
In sum, Petitioner filed the instant Petition, with respect to
Grounds 1, 2, and 3, untimely.
Merits
As to Ground 4, Petitioner’s claim clearly qualifies as
meritless, so the Court need not address the issue of timeliness.
See Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2005) (“Because
the one-year statute of limitations is not jurisdictional, a
10
Notably, the North Carolina Supreme Court described the
evidence against Petitioner as “overwhelming.” Kuplen, 316 N.C. at
415, 343 S.E.2d at 809.
In that regard, the victim, who knew
Petitioner prior to the assault, identified him both prior to trial
and in court, see id. at 391-92, 410-11, 343 S.E.2d at 795-96, 80607, “police recovered from the victim’s living room floor a button
with attached thread and cloth which matched a blue flannel shirt
they seized from [Petitioner’s] apartment,” id. at 392, 343 S.E.2d
at 796; see also id. at 401, 343 S.E.2d at 801 (“According to the
victim’s testimony at trial, [Petitioner] arrived at the victim’s
apartment . . . wearing a . . . light blue flannel shirt . . . .”),
a witness testified “that he was in the same cell block as
[Petitioner] and that [Petitioner] told [the witness] ‘that
[Petitioner] should have made sure the bitch could never walk, see
or hear again, and [Petitioner] should have-should have made sure
she was dead,’” id. at 404, 343 S.E.2d at 803, and “[b]lood which
matched that of the victim was found inside a boot seized from
[Petitioner’s] apartment,” id. at 392, 343 S.E.2d at 769.
11
federal habeas court is not duty-bound to consider the timeliness
of a § 2254 petition.”).
post-conviction
“[W]here there is some error in state
proceedings,
a
petitioner
is
not
entitled
to
federal habeas relief because the assignment of error relating to
those
post-conviction
proceeding
itself.”
collateral
proceedings
to
represents
detention
and
not
an
to
attack
the
on
a
detention
Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008);
see also Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988)
(“[C]laims of error occurring in a state post-conviction proceeding
cannot serve as a basis for federal habeas corpus relief.”). Here,
Petitioner attacks the validity of the trial court’s decision on
Petitioner’s MAR based on an alleged conflict of interest of the
presiding judge.
3 at 14-16.)
(See Docket Entry 2 at 10; see also Docket Entry
Clearly, Ground 4 does not provide a basis for habeas
relief, and the Court should dismiss Ground 4 as meritless.
Conclusion
Petitioner filed the instant Petition untimely with respect to
Grounds 1, 2, and 3, and Petitioner cannot rely on Ground 4 as a
basis for federal habeas relief. Therefore, the Court should grant
Respondent’s instant Motion and dismiss the Petition.
12
IT
IS
THEREFORE
RECOMMENDED
that
Respondent’s
Motion
to
Dismiss (Docket Entry 9) 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.
IT IS FURTHER RECOMMENDED that Petitioner’s pending motions
(Docket Entries 14, 15, 24) be denied as moot.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 20, 2015
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?