TAYLOR v. PERRY

Filing 19

MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 09/14/2015. IT IS ORDERED that Respondent's motion to dismiss 5 is GRANTED and the Petition 2 be DISMISSED. A judgment dismissing this action will be entered contemporaneously with this Memorandum Order. A certificate of appealability is not issued. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CALVIN S. TAYLOR,
Petitioner,
v.
FRANK PERRY, Secretary,
N.C. Department of Public
Safety,
Respondent.

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1:14CV709

MEMORANDUM ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court is Respondent’s motion to dismiss the pro se
petition for a writ of habeas corpus filed by Calvin S. Taylor.
(Doc. 5.)

Petitioner challenges his State custody under 28 U.S.C.

§ 2254, primarily alleging ineffective assistance of counsel.
(Doc. 2.)

On June 8, 2015, the United States Magistrate Judge’s

Recommendation was filed, and notice was served on the parties in
accordance with 28 U.S.C. § 636.

(Doc. 11.)

The Magistrate Judge

concluded that this action was time-barred and recommended that
the Petition be dismissed.

(Id.)

Petitioner filed objections to

the Recommendation. 1

1

In addition to filing objections to the Recommendation through counsel
(Doc. 16), Petitioner also filed a separate set of objections pro se.
(Doc. 18.) Individuals should not proceed simultaneously as represented
by counsel and pro se. Because the pro se objections fail to raise a
viable argument, however, the court finds that a de novo review of them
fails to warrant a different conclusion.

The court’s obligation is to conduct a de novo determination
of

those

objects.
the

portions

of

the

Recommendation

28 U.S.C. § 636(b)(1).

Recommendation

will

be

to

which

Petitioner

For the reasons set forth below,

adopted

and

the

petition

will

be

dismissed.
I.

BACKGROUND
On

July

14,

2004,

a

Forsyth

County

Superior

Court

jury

convicted Petitioner of first-degree burglary, larceny, attempted
second degree rape, and being a habitual felon.

(Doc. 2 ¶¶ 1–6.)

On January 17, 2006, the North Carolina Court of Appeals found no
error in Petitioner’s conviction.

State v. Taylor, No. COA05-425,

2006 WL 91785 at *4 (N.C. Ct. App. 2006).

On January 18, 2011,

Petitioner signed a Motion for Appropriate Relief (“MAR”), which
he later filed in Forsyth County Superior Court.
17.)
and

(Doc. 6-3 at 12–

The Superior Court denied Petitioner’s MAR (id. at 36–39),
Petitioner’s

December 19, 2013.

request

for

appellate

(Doc. 2 at 20.)

review

was

denied

on

On August 20, 2014, Petitioner

filed a petition for a writ of habeas corpus with this court.

(Id.

at 1.)
II.

DISCUSSION
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

of 1996, Pub. L. No. 104-132, 110 Stat. 1214, governs habeas
petitions and prescribes a one-year limitations period for them.
28 U.S.C. § 2244(d)(1).

The one-year clock begins to run at the
2

latest of four possible dates, three of which are pertinent to
this Order:
(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; [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.
Id.

The one-year clock is tolled during the time State post-

conviction proceedings are pending in any State court and may be
equitably tolled in “rare instances.”

Harris v. Hutchinson, 209

F.3d 325, 328–30 (4th Cir. 2000) (citing 28 U.S.C. § 2244(d)(2)).
However, once the limitations period has expired, later-filed
State post-conviction petitions cannot revive it.

Minter v. Beck,

230 F.3d 663, 665–67 (4th Cir. 2000).
The Magistrate Judge found that the one-year limitations
period for Petitioner’s habeas claim began running in late February
2006, when Petitioner’s direct appeal ended and his convictions
became final.
concluded

that

limitations

(Doc. 11 at 4–5.)
Petitioner’s

period

because

The Magistrate Judge therefore

claim

is

Petitioner

3

barred
filed

by

the

this

one-year

action

on

August 20, 2014, more than seven years after the limitations period
for his habeas claim began to run.
Petitioner

first

argues

(Id.)
that,

under

28

U.S.C.

§ 2244(d)(1)(D), the limitations period for his habeas claim
restarted when he received an affidavit from his trial counsel on
April 5, 2011.

(Doc. 16 at 3, 5–6).

Petitioner claims that he

did not become aware of the factual predicate of his claims until
he

received

persuasive.

this

affidavit.

(Id.)

This

argument

is

not

The affidavit of Petitioner’s trial counsel states,

in relevant part: “If my motion to continue had been granted, the
Defendant and I would have had more time to investigate, develop
and prepare a viable defense.”

(Doc. 6-3 at 31–32.)

This

statement did not provide Petitioner with any new information
regarding the factual predicate of his ineffective assistance of
counsel claim.

Petitioner was aware that his trial counsel wanted

more time to prepare his defense (Doc. 16 at 4), and he raised the
trial court’s denial of his request for a continuance on direct
appeal.
from

See Taylor, 2006 WL 91785 at *3.

Petitioner’s

trial

counsel

Because the affidavit

provided

no

new

factual

information, it did not restart the one-year limitations period
under 28 U.S.C. § 2244(d)(1)(D).
Petitioner also argues that his petition is timely because he
lacked access to some of his “court paper[s]” in 2006 and 2007.
(Doc. 18 at 2–3).

Petitioner claims that the State prison lost
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his paperwork during that period and contends that this prevented
him from filing a timely petition.

(Id.)

This argument fails,

regardless of whether it is construed as an attempt to invoke 28
U.S.C. § 2244(d)(1)(B) or the doctrine of equitable tolling.

Even

if the loss of Petitioner’s paperwork tolled the limitations
period, as Petitioner contends, his claim would still be timebarred because Petitioner did not file another action until January
18, 2011, more than three years after he recovered his paperwork.
Petitioner next contends that his claim should proceed under
the actual innocence exception to the limitations period for habeas
claims.

See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).

In order to satisfy the actual innocence exception, a petitioner
must “support his allegations of constitutional error with new
reliable evidence.”

Schlup v. Delo, 513 U.S. 298, 324 (1995).

Petitioner has not presented any such new evidence in this case,
relying instead on statements in a police report that was available
at the time of his trial.

(Doc. 16 at 6.)

Finally, Petitioner asserts that the one-year limitations
period began anew when North Carolina amended its habitual felon
statute in 2011.

(Doc. 18 at 2–3.)

Petitioner appears to be

referencing changes in the habitual felon sentencing formula,
which apply only to offenses occurring on or after December 1,
2011.

Justice Reinvestment Act of 2011, 2011 N.C. Sess. Laws 192,

§ 3(d)–(e) (modifying N.C. Gen. Stat. § 14-7.6).
5

This change in

State law is unrelated to Petitioner’s ineffective assistance of
counsel

claim

and

therefore

does

not

implicate

28

U.S.C.

§ 2244(d)(1) or the doctrine of equitable tolling as to that
claim. 2

Even if this new claim were not unexhausted and time-

barred, however, it would nevertheless fail on the merits because
federal district courts have repeatedly declined to grant habeas
relief based on the argument that this State statute should apply
retroactively.

See Stoneman v. Solomon, No. 1:13cv836, 2014 WL

1270060, at *4 (M.D.N.C. Mar. 26, 2014) (collecting cases).
In sum, the court has carefully reviewed the portions of the
Magistrate Judge’s report to which objection was made and has made
a de novo determination, which is in accord with the Magistrate
Judge’s Recommendation.

The court therefore adopts the Magistrate

Judge’s Recommendation.
III. CONCLUSION
For the reasons stated, Petitioner’s claim for a writ of
habeas corpus is time-barred under 28 U.S.C. § 2244(d)(1).
IT IS THEREFORE ORDERED that Respondent’s motion to dismiss
(Doc. 5) be GRANTED and that the Petition (Doc. 2) be DISMISSED.
A

judgment

dismissing

this

action

will

contemporaneously with this Memorandum Order.

be

entered

Finding neither a

“The statute of limitations is specific to each claim in a federal
habeas petition.” O’Dell v. Plumley, No. 1:14CV73, 2015 WL 500530, at
*12 (N.D. W.Va. Feb. 5, 2015) (collecting cases).
2

6

substantial

issue

for

appeal

concerning

the

denial

of

a

constitutional right affecting the conviction nor a debatable
procedural ruling, a certificate of appealability is not issued.

/s/
Thomas D. Schroeder
United States District Judge
September 14, 2015

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