LOPEZ v. MCKOY

Filing 8

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 12/14/2015, that Respondent's Motion to Dismiss (Docket Entry 5 ) be GRANTED, that the Petition (Docket Entry 2 ) be DISMISSED, and that judgment be entered dismissing this action.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DORTNDO ES QUTVEL LOPEZ,

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Petitioner,
v

T. McKOY,

Respondent.

l:15CY127

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitionet, a pdsonet of the State of Notth Carolina, seeks a wtit of habeas corpus
pursuant to 28 U.S.C.

S

2ZS+-t (Docket Entty 2.) Respondent has fìled a Motion to Dismiss

on Statute of Limitations Gtounds (Docket Entry 5) and Initial Answet (Docket Entty

4)

Petitioner was notifìed (Docket E.rtry 7) of his dght to reply to the Respondent's Motion to
Dismiss (Docket E.ttry 5) but no reply was forthcoming.

Background

On May L3, 2005, Petitioner was found g"ilty after a 1ury tnal in Supetiot Coutt,
Fotsyth County of ftst-degree sexual offense against a child undet thirteen yeats of age, and

-

taking indecent liberties with a

child.

(Docket

Enry 2, $S 1-6.)

FIe was sentenced to

consecutive terms of 226-281. and 14-11 months of imprisonment. (Id.) On May 16,2006,

the Notth Caroltna Court of Appeals found rìo error in Petitioner's convictions. State
Esqaiael-L"ope7,

1

a.

177 N.C. App. 565 Q006). The Notth Carolina Supteme Court denied

In addition to his Petition, Petitioner has filed
Attach. 1at20.)

a supporting

memorandum. (DocketBnty 2,

Petitioner discretionary review on August 17, 2006. State u. Esqøiuel-I-npe7, 360 N.C. 579
Q006). Petitioner did not seek further review with the Supreme Coutt of the United States.
(Docket Entty 2,

S

9(h).)

Petitioner next filed a motion for DN-,\ testing on March 25,2009, in Supedot Coutt,
Forsyth County, which was denied August 31,,2009. (Docket Entty 2, Attach. 3 at'1.3-1.6.)
Petitionet's frst Motion for Appropriate Relief ("M,{R"') was fìled on October
same court and was denied on November 1.1,,201,'1,. (1d., Attach.

17 ,201,1,

in the

1at66-67.) Petitionet's

second MAR was filed Octobet 2,201,2 in the same court and was denied on March 5,20'1.3.

(1/.) Petitioner's third MAR was filed in the same court on Âugust 6,201,4 and was denied on
November 18,2014. (Id. at 33-86.) On Decemb er 22,201,4, Petitioner filed a petition for wdt
of cetiorari with the North Carohna Court of Appeals, which was denied onJantary 8,20L5.

(d. at 35-86 and id. Attach. 2 at59.) Petitioner sþed the instant petition onJanuary 27,2015
and it was filed on Febtuary 2,201.5. (Docket F,nty 2.)

Petitioner's Claims
Petitionet contends: (1) "untimely disclosute of Bra@ materials denied the Petitioner
due ptocess of law pursuant to the Fifth and Foutteenth amendments"; (2) "[t]he trial coutt

erted by allowing testimony

in conflict with the victim's testimony"; (3) he "was

denied

effective assistance of counsel"; and (4) the "[e]vidence at tttal tenders Petitionet 'actualIy

innocent."' @ocket Entry 2, Grounds One through Fout.)
Discussion
Respondent requests dismissal on the ground that the Petition was filed beyond the
one-year limitation period imposed by 28 U.S.C. S 2244(d)(1). (Docket

2

Enry 5.) In ordet to

assess

this argument, the Coutt ftst must determine when Petitioner's one-year period to file

his $ 2254 petition commenced. In this rcgard, the United

State s

Court of Appeals for the

Foutth Circuit has explained that:
Undet

S 2244(d)(1XA)-(D), the one-year limitation pedod begins to
ranfrorn the latest of sevetal potential statting dates:

(A) tlte date on which

the

judgnent became fnal þt the concla¡ion of direct
tirneþr seeking sach reuieal

reaiew or the expiration of the

(B) the date on which the impediment to filing an application
cteated 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
tecognized by the Supreme Court, if the dght has been newly

recognized by the Supteme Court and made retroactively
applicable to cases on collateral review; ot
(D) the date on which the factual predicate of the claim ot claims
ptesented could have been discovered through the exercise of due
diligence.
Creen

u.

Johnson,515 F.3d 290, 303-04 (4th Cir. 2008) (emphasis added). The tecotd does not

teveal any basis for concluding that subparagraphr @)-(D)

"f S

2244(d)(1) apply here.2

Under subpatagraph (A), Petitionet's one-year limitation pedod corrunenced on "the
date on which the judgment became final by the conclusion of direct review ot the expiration

of the time fot seeking such review." 28 U.S.C.

S

2244(d)(1XÐ. The Court must therefore

ascertain when direct teview (or the time for seeking direct review) of Petitioner's underþing

'Petitionet, without explanation, invokes subparagraph (D) i" his supporting memorandum, but it is
not applicable hete because all of the factual ptedicates to Petitionet's current claims were known, or
should have been known, to him by the completion of direct review. (Docket Ettt y 2, Attach. T at
4.) For example, by his own account, Petitioner, knew of the "Braþ matenaY' (a medical teport from
"Dt. Sinai") prior to ttral. (Id. at 70, 14.)
^

a

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conviction(s) ended. Here, Petitioner's convictions became final in Novembet of 2006; that

is, 90 days after the August 17, 2006 decision of the Supteme Court of Notth Carohna
declining to review Petitioner's case further.

See

Clry u. United States,537 U.S. 522,527 Q003)

(holding that "ff]inality attaches when this Coun afftms a conviction on the merits on clitect

teview or denies a petition fot a wdt of cettiorari, or when the time fot filing a certtotan
petition expires." (internal citations omitted));

see

al¡o Sup. Ct.

R. 13.1 (allowing petitioners 90

days after highest state appellate coutt's denial to fìle for writ of certiorad). Petitioner's year

to file thus began to tun in Novemb er 2006 and, absent tolling of some form, was set to expire

oîe yeàr later in November 2007. Petitioner did not file the instant Petition until, at the
earliest, January of 20'1,5; consequently, the instant action is more than seven yeats late.

The undersigned notes that the instant action would have been subject to statutory
tolling if Petitionet had

a

propetly filed post-conviction petition pending in state court during

the one-yeat limitations period. 28 U.S.C.

S

2244(d)Q);

see

Tallor

u.

Lee,186 F.3d

557

,

561,

(4th

Clr. 1,999) (state collatetal filings generally toll the fedetal habeas deadline for "the entire petiod

of state post-conviction proceedings, from initial filing to final disposition by the highest court
(whether decision on the merits, denial of ceftiorari, ot expiration of the period of time to seek

further appellate review)"). However, statutory tolling does not apply hete because none of
Petitioner's state post-conviction proceedings were pending during the limitations period. In

other wotds, Petitioner's time to file in this Coutt expired befote he made any state court

fìlings. Filings made after the limitations period has ended do not tevive or restart tt. Minter
u. Beck, 230 tr.3d 663, 665 (4th Cir.

2000). None of Petitioner's state fìlings were made pdot

to the expiration of the limitations period in November of 2001 .

4

Petitionet does not dispute the foregoing time-line. Instead, he atgues

in

section

eighteen of his Petition that the statute of limitations does not bar his claim even though his

conviction became final more than one

yer ago because

he is actually innocent of the crimes

for which he was convicted. (Docket E.rtty 2, S 18.) It is true that relatively tecently, the
Supteme

Cout tecognized in Mtpaigin u. Perkins, 133 S.Ct.

1924, 1,928 Q01,3), an actral

innocence exception to the relevant time limitation. However, to establish actual innocence,

"a petitioner must show that it is mote likely than not that no reasonable jurot would have
found petitionet g"tlty beyond a teasonable doubt." Schlap
see

Mtpøigin, 133 S.Ct.

^t

1935.

u.

Delo,513 U.S. 298,327 (1995);

"To be credible, such a claim tequkes petitionet to support

his allegations of constitutional eror with new reliable evidence-v/hethet it be exculpatory
scientific evidence, trustwotthy eyewitness accounts, or cdtical physical evidence-that was
not presented at ttiaI." Sch/ap,513 U.S. at324. Here, Petitioner has done no more than assert

in a conclusolry mannet that he is innocent, which is insufficient to satis$r this exception. See
Nic,ëerson u.

I-ee,971 F.2d 1L25, 1136 (4th Ck. 1,992) abrog'n on other

Angelone,166 F.3d 255 (4th Clr. 1,999).

groaruds reng'd, Yeatts

u.

In the end, his Petition was filed out of time, and

Respondent's Motion to Dismiss should be granted. Ân evidenttary hearing in this matter is

not warranted.3

1

The doctdne of equitable tolling also applies to the time bar set forth in Section 2244. See Holland a.
Florida,560 U.S. 631,,648 Q010). Equitable tolling may excuse an untimely fi,ling when a petitioner
"shows '(1) that he has been pursuing his nghts dilìgently, and Q) that some extraordinary
citcumstance stood in his way'and prevented timely filing." 1/. (quoting Pace a. DiGuglielno, 544 U.S.
408, 478 (2005)). Beyond asserting his medtless actual innocence claim, however, Petitioner has not
made any equitable tolling argument and none is apparent on the face of the pleadings.
5

IT IS THEREFORE RECOMMENDED

that Respondent's Motion to Dismiss

pocket E.rtty 5) be GRANTED, that the Petition pocket Entry 2) be DISMISSED,
thatJudgment be entered dismissing this action.

Decembe

,þ,

Uni

zots

(-¡

L. Vebster
Magistrate Judge

and