CASTILLO v. PERRITT
Filing
13
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 10/30/2015; that Respondent's motion to dismiss (Doc. 9 ) be GRANTED and that the Petition (Doc. 2 ) be DISMISSED WITH PREJUDICE. A judgment dismissing this a ction will be entered contemporaneously with this Memorandum Order. Finding neither a 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. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARCELINO GARCIA CASTILLO,
Petitioner,
v.
BRAD PERRITT, Superintendent,
Lumberton Correctional
Institute,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
1:15CV32
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court is Respondent’s motion to dismiss Marcelino
Garcia Castillo’s pro se petition for a writ of habeas corpus.
(Doc. 9.)
§ 2254,
Castillo challenges his State custody under 28 U.S.C.
primarily
alleging
defective
indictment,
ineffective
assistance of counsel, and illegal search and seizure.
(Doc. 2.)
For the reasons set forth below, the petition will be dismissed.
I.
BACKGROUND
On April 26, 2011, Castillo pleaded guilty to trafficking and
conspiracy to traffic 400 grams or more of cocaine.
(Doc. 10-2.)
The Superior Court of Guilford County sentenced Castillo to 175219 months of imprisonment. (Doc. 10-3 at 2–3.)
appeal his conviction.
On
July
29,
Castillo did not
(Doc. 2 at 2–3.)
2014,
Castillo
signed
a
pro
se
Motion
for
Appropriate Relief (“MAR”) in the Superior Court of Guilford
County.
(Doc. 10-5.)
In his MAR, Castillo claimed that the State
lacked sufficient evidence to support his conviction, that his
indictment failed to allege an element of his trafficking offense
and lacked a statutory citation, and that he was entitled to the
mandatory minimum sentence.
(See id. at 6–14.)
On August 19,
2014, Castillo signed an amended pro se MAR alleging that his trial
counsel failed to preserve his right to appeal upon the entry of
the guilty plea.
(See Doc. 10-6 at 12.)
The Superior Court denied
Castillo’s motions. (Doc. 10-8.) Castillo filed a pro se petition
for certiorari with the North Carolina Court of Appeals, which was
denied on October 15, 2014.
(Doc. 2 at 42.)
Castillo then filed
a pro se petition for certiorari with the North Carolina Supreme
Court, which was denied on December 18, 2014.
(Id. at 22.)
On January 12, 2015, Castillo filed a petition for a writ of
habeas corpus with this court.
reduced
sentence,
a
new
(Id. at 1.)
sentencing
hearing,
Castillo seeks a
or
to
have
convictions vacated, and he claims four grounds for relief.
at 5–10, 15.)
allege
an
his
(Id.
First, he claims that his indictment failed to
essential
element
of
an
offense
for
which
he
was
convicted, specifically that he “knowingly” trafficked cocaine,
and thus the State court did not have jurisdiction in his case.
(Id. at 5.)
Second, Castillo claims that the State court lacked
jurisdiction because his indictment did not include a necessary
statutory citation.
(Id. at 7.)
2
Third, he claims that his
sentence exceeds the range to which he agreed in a plea bargain
and promised to him by trial counsel.
(Id. at 8.)
Finally,
Castillo claims that he was arrested after an illegal search in
violation of the Fourth Amendment.
(Id. at 10.)
Respondent moves to dismiss the petition as untimely.
9, 10.)
(Docs.
In a reply brief, Castillo raises an additional ground
for relief. Specifically, he alleges that his trial counsel failed
to follow his instruction (through an interpreter) to pursue a
direct appeal of his conviction.
II.
(Doc. 12 at 6–7.)
ANALYSIS
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
of 1996, Pub. L. No. 104-132, 110 Stat. 1214, prescribes a oneyear
limitations
§ 2244(d)(1).
period
for
habeas
petitions.
28
U.S.C.
The one-year clock begins to run at the latest of
four possible dates, two of which are pertinent here:
(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; [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.”
F.3d 325, 328–30 (4th Cir. 2000).
3
Harris v. Hutchinson, 209
However, once the limitations
period has expired, later-filed State post-conviction petitions
cannot revive it.
See id. at 327–28 (post-conviction proceedings
may suspend, but do not reset, the statute of limitations); Moore
v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) (post-conviction
proceedings do not “reset or restart the statute of limitations
once the limitations period has expired”).
Here, the statute of limitations bars Castillo’s claims.
Judgment was entered against Castillo on April 26, 2011.
10-3.)
Because
Castillo
did
not
appeal
that
(Doc.
judgment,
his
conviction became final on or around May 10, 2011, fourteen days
after the entry of judgment. See N.C. R. App. P. 4(a)(2). Castillo
did not file the present petition until January 12, 2015, more
than three and a half years after the limitations period began to
run under § 2244(d)(1)(A).
To the extent that Castillo claims to have recently discovered
the bases for his claims, (see Doc. 2 at 13 (“The evidence was
newly discovered on October 23, 2014 and November 20, 2014.”)),
§ 2244(d)(1)(D) does not warrant a later limitations period in
this case.
Castillo claims that he received a longer sentence
than that to which he agreed in a plea bargain, that his arrest
was the result of an illegal search, and that his indictment was
defective.
(Doc. 2.)
But Castillo knew or should have known the
length of his sentence no later than the date of his sentencing
hearing.
Similarly, Castillo knew or should have known about his
4
arresting officers’ conduct and the contents of his indictment no
later than the date of his plea.
See Wade v. Robinson, 327 F.3d
328, 333 (4th Cir. 2003) (limitations period not extended under
when petitioner could have learned information available from
“public sources”).
As a result, § 2244(d)(1)(D) does not extend
the limitations period for any of Castillo’s claims. 1
Castillo contends that his claim should proceed under the
actual
innocence
exception
to
the
limitations
period.
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
See
In order to
satisfy the actual innocence exception, however, a petitioner must
“support his allegations of constitutional error with new reliable
evidence.”
Schlup v. Delo, 513 U.S. 298, 324 (1995).
Although
Castillo summarily alleges that evidence was “newly discovered on
October 23, 2014, and November 20, 2014,” he fails to identify or
describe this evidence.
(Doc. 2 at 13; see also Doc. 12 at 6
(claiming, without elaboration, that “newly discovered evidence .
. . was withheld by the state and prosecutor”).)
In the absence
of any specific information about this alleged new evidence,
1
In his reply brief, Castillo also claims that his trial counsel failed
to follow instructions to perfect an appeal.
(Doc. 12 at 6–7.)
A
petitioner cannot allege new grounds for relief for the first time in
his reply brief. See Tyndall v. Maynor, 288 F.R.D. 103, 108 (M.D.N.C.
2013). Even if this claim had been properly raised, however, it would
also be time-barred because the statute of limitations began to run when
Castillo knew or should have known that his attorney failed to appeal,
i.e., shortly after the fourteen-day period for appeals expired.
5
Castillo cannot invoke the actual innocence exception. See Schlup,
513 U.S. at 324.
Castillo also contends that the limitations period should be
equitably tolled because he speaks no English, lacked access to an
interpreter after his conviction, was not informed of the time
limits for his direct appeal or habeas claims, and is generally
ignorant of the law.
(Doc. 2 at 13–14.)
Even if true, these
allegations do not warrant equitable tolling.
Equitable tolling
is only appropriate in “rare instances where - due to circumstances
external to the party’s own conduct - it would be unconscionable
to enforce the limitation period against the party and gross
injustice would result.” Harris, 209 F.3d at 330. District courts
in this Circuit have consistently held that neither a prisoner’s
ignorance
of
the
law
nor
his
inability
sufficient to warrant equitable tolling.
to
speak
English
is
See, e.g., Osnarque v.
Thomas, No 3:08CV76-1-MU, 2009 WL 650551, at *1 (W.D.N.C. Mar. 11,
2009) (holding that a petitioner cannot invoke equitable tolling
simply because “he is layman of the law and he does not speak
English well”); see also Aviles-Negron v. Massey, No. 1:11-CV904,
2013 WL 1314602, at *3–4 (M.D.N.C. Mar. 28, 2013) (collecting
cases).
“[E]ven
in
the
case
of
an
unrepresented
prisoner,
ignorance of the law is not a basis for equitable tolling.”
States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004).
6
United
Finally, Castillo appears to argue that challenges to a
convicting court’s jurisdiction may be raised at any time.
Doc. 12 at 1–2.)
(See
In support of this assertion, Castillo cites
United States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999),
United States v. Vreeken, 803 F.2d 1085, 1088 (10th Cir. 1986),
United States v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir. 2003),
United States v. Browne, 505 F.3d 1229, 1271 n.31 (11th Cir. 2007),
and Fed. R. Crim. P. 12(b)(3)(B).
(Doc. 12 at 1–2.)
These
authorities provide that a defendant may challenge a federal
court’s
subject
matter
jurisdiction
on
direct
appeal.
See
Gatewood, 173 F.3d at 986; Vreeken, 803 F.2d at 1088; Rosa-Ortiz,
348 F.3d at 36; Browne, 505 F.3d at 1271 n.31; Fed. R. Crim. P.
12(b)(3)(B).
None of these authorities, however, creates an
exception to the statute of limitations for federal habeas claims.
To the extent that Petitioner claims his conviction violated
State law, such claims are not cognizable on federal habeas review.
See Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998) (holding
that
a
prisoner’s
claim
that
a
State
trial
court
lacked
jurisdiction over counts in his indictment is not cognizable on
habeas review).
Prisoners may, of course, raise federal due
process claims based on a State court’s lack of jurisdiction.
Danforth v. Minnesota, 552 U.S. 264, 271–73 (2008).
See
But such
federal due process claims remain subject to the federal statute
of
limitations.
Mize
v.
Warden,
7
No.
7:11-cv-00284,
2011
WL
4102289, at *1 (W.D. Va. Sept. 14, 2011); Gibson v. Klinger, 232
F.3d 799, 808 (10th Cir. 2000).
In sum, Castillo’s claims are time-barred under 28 U.S.C.
§ 2244(d)(1).
Castillo filed his petition more than three years
after his conviction became final, and he has not cited any
statutory
or
equitable
authority
to
warrant
an
extended
limitations period.
III. CONCLUSION
For the reasons stated, Castillo’s claims are time-barred
under 28 U.S.C. § 2244(d)(1).
IT IS THEREFORE ORDERED that Respondent’s motion to dismiss
(Doc. 9) be GRANTED and that the Petition (Doc. 2) be DISMISSED
WITH PREJUDICE.
A judgment dismissing this action will be entered
contemporaneously with this Memorandum Order.
substantial
issue
for
appeal
concerning
Finding neither a
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
October 30, 2015
8
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?