GLADDEN v. WASHINGTON

Filing 12

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 12/15/2015. In the end, the Petition was filed out of time and Respondent's Motion to Dismiss should be granted. An evidentiary hearing in this matter is not warranted nor is the appointment of counsel. IT IS THERFORE ORDERED that Petitioner's Motion for the Appointment of Counsel (Docket Entry 6 ) be DENIED. RECOMMENDED that Respondent's Motion to Dismiss (Docket Entry 8 ) be GRANTED, that the Petition (Docket Entry 1 ) 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
TYRONE R. GLADDEN,
Petitioner,
v
O. SøASHINTGON,

Respondent.

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)
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t:15CY207

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTR,{.TE IUDGE
Petitionet, a ptisonet of the State of North Carohna, seeks a writ of habeas corpus
pursuant to 28 U.S.C. S 2ZS+-t (Docket Entry

1.)

Respondent has filed an Initial Answer

(Docket E.rtty 7), a Motion to Dismiss (Docket Entty 8), and a Bdef in support (Docket E.rtty

9). Petitioner has filed a Response. (Docket E.rtty 11.) This

case is

now prepared for

a

ding.

Background
On July 26, 2007 , Petitionet was convicted aftet a jury ttial in Superior Coutt, Cabartus

County of two counts of ftst degree murder; one count of fìrst-degree burglary; one count
conspiracy to commit murdet; and four counts

Entty

1, SS

of

of solicitation to commit murdet. (Docket

1-6.) He was sentenced to life imprisonment without parole for the murder charges

and to additional terms of imprisonment for the temaining convictions. (1d., $ 3.) Petitioner

filed a timely appeal with the North Caroltna Court of Âppeals, which, on August 3, 2010,
found no error in his convictions. State u. Gladden,206 N.C. .{pp. 331 (201,0). Petitioner did

t Petitioner has
also filed a supporting

bdef. (Docket Entry

1,

Attach. 4 at2ï-42.)

not file a petition fot disctetiottÀry teview with the Supreme Court of North Caroltna, seeking
teview of the decision of the North Caroltna Court of -dppeals, but instead fìled

a

petition for

wdt of cettiotari in that court on Septembet 13, 201,0. State u. Gladden,365 N.C. S8 (2011).

It

was denied on March 1,0,2011,. Id.

OnJune 3,2011, Petitioner filed

a

Motion fot Apptoptiate Relief ("MAR') in Superior

Coutt, Cabatrus County. (Docket E.rtty 9, Exs. C-D.) On ,\ugust 4,20"1.1, the MÂR was
denied. (Id. at Ex.

D.) On Septembet 19, 201.1, Petitjoner filed a petition for writ of certiorari

with the North Carohna Court of Appeals to review the denial of the MAR, which was denied
on October 6,201.1. (Id.,E.)

In Febtuary of

201.3,

Petitioner filed a motion for

DN,\

testing in Supedot Court,

Cabarus County, which was denied on July 9,201,3 and denied again upon reconsideration
onJuly 1.9,2013.

See

State u.

Gladden,762S.E.2d531 (NT.C. Ct.,\pp. 201,4). Petitioner appealed

to the Noth Carohna Court of Appeals, which affirmed the decision of the trial court onJune
1,7,2014. Id. Peäoner's tequest fot disctetionary review with the Supreme Court of North
Carohna was dismissed onJanuary 22,2015. State u. G/adden,367 N.C.

81,1,

Q01,5).

Additionally, Petitioner also filed a second MAR in Supedor Court, Cabarus County
on Novembet

^t

7

,201.4, which was denied on November 14,2014. (Docket Entty 1, Attach

1

9-25.) Petitionet then fìled a petition for wdt of certiorad in the North Caroltna Coun of

Appeals, seeking teview of the denial of his second M,tR, on December 10, 201.4, which was
denied on December 16,2014. (Id. at 3-8.) Next, Petitioner sought discretionary review with
the Supreme Coutt of

Notth Carohna on December 29,201.4,which was dismissed onJanuary

2

22,2015. (Id. at 1,-2.) Petitionet signed the instant Petition on Match 5,201.5; it was date
stamped as filed on March 9,2015. (Docket Entry 1.)

Petitioner's Claims
The Petition raises two claims. First, Petitioner contends that his convictions were
obtained through pe{ured

ot hearsay testimony,

perjuted testimony to obtain

a

because "the prosecutor knowingly used

gülty conviction and misled the jury to fìnd þm] guilty on all

chatges." (Docket Etrtry 1, 512, Ground One.) Second, Petitioner contends that his "[g]oilty
conviction was obtained in violation of the 5th Âmendment, Double Jeopatdy Clause."
Ground

Two) Âs explained below, these claims are time-batred and should

(1d.,

be dismissed.

Discussion
Respondent requests dismissal on the ground that the Petition (Docket Entry 1) was
ûled beyond the one-yeat limitation period imposed by 28 U.S.C. 52244(d)(1). (Docket E.rtty

8.) In otder to

assess Respondent's

limitation argumenq which is a threshold issue, the Court

fìrst must detetmine when Petitionet's one-year period to file his $ 2254 petition commenced.

In this regard, the United

Coutt of Appeals for the Foutth Circuit has explained that:

2244(d)(1XÐ-(D), the one-year limitation period
the latest of several potential starting dates:
fron

Undet
ran

States

(A)

S

the date on which

reuiew or the expiration

begins to

judgment became fnal @ the conilasion of direct
ofthe tirnefor seekingsuch reuieur,

the

(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution ot laws of
the United States is removed, if the applicant was prevented ftom
filing by such State action;
(C) the date on which the constitutional right assetted was initially
tecognized by the Supreme Coutt, if the right has been newly

3

recognized by the Supreme Court and made retroactively
applicable to cases on collatetal revrew; or
Q)) the date on which the factual predicate of the claim ot claims
presented could have been discovered through the exetcise of due
diligence.
Creen

u.

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

teveal any basis fot concluding that subparagraph (C) of

\

2244(d)(1) applies hete

Subparagtaph (A)
Undet subpatagraph (A), Petitioner's one-year limitation period cofiunenced on "the
date on which the judgment became final by the conclusion of direct review or the expiration

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

S

2244(d)(1XÐ. The Cout must thetefote

ascertain when direct review (or the time for seeking direct review) of Petitionet's undetlying

conviction(s) ended. Flere, the North Carohna Court of Âppeals found no error in Petitionet's

criminal convictions on August 3, 201,0. Petitioner did not pursue ditect appeal futhet.2
2

As noted, Petitioner did not file a petition for discrettonary review with the Supreme Cout of North
Catolina, seeking review of the decision of the Noth Carolina Court of Appeals. Instead, Petitioner
filed a petition for wdt of certiorari with that court on September 13,201,0, which was denied on
Match 10,2077. State u. Cladden,365 N.C. 88 (2011). Nevertheless, only "a propetþ filed application
for State post-conviction ot othet collateralreview" tolls the limitations period. 28 U.S.C. 52244(d)(2).

Here, the petition for writ of certiorari filed with the Supreme Court of Noth Caroltna was not
sufficient to statutorily toll the limitations period because it was not "properþ fi-led." Artalu. Bennell,
531 U.S. 4, 8 (2000) (describing "properþ fded" document as one submitted in accotdance with state
rules concerning form of document, dme limits, and propet court and office for frling). A petition
fot certiorari to the Supteme Court of North Carohna, fot the purposes of seeking an out-of-time
review of the afftmance of a conviction by the North Caroltna Coutt of ,{.ppeals on clitect review,
was not pàrt of the direct review process in North Carolina. See, eg., Saguilar u. Harkleroad, 348
^
F.Supp.2d 595, 598-601 (\{.D.N.C.2004) (concluding that "petitions fot cetd.orari in Noth Caro\na
are not part of the direct review process refered to in AEDPA, nor
they to be used to determine
^rc
^
the finality of convictions and the beginning of the one-year limitations pedod ot the tolling of the
limitation period"). Futthermore, the fact that the Supreme Court of Noth Caroltna sometìmes, in
its discretion, suspends or creates exceptions to its procedural des does not mean that a petition for
discretionary teview should serve to toll the limitations period. See Rouse a. I-.ee,339 F.3d238,245 (4tb
Cfi.2003). Ând in any event, as explained later herein, even if Petitioner's September 73,2010 petition
fot writ of certiorari with the Supreme Court of Noth CaroËna were sufficient to statutodly toll the
4

Petitionet's convictions thus became final on September 7,201.0, thatis, thirty-five days after
the August 3,201,0 opinion was issued ftom the Court of ,\ppeals.

J¿¿

N.C. R.App. P. Rules

1,4(a) and

15þ) (15 days to fìle ftom the issuance of the Court of .{ppeals' mandate to file

of

appeal andf or PDR in Supreme Court of North Carolina) and Rule 32þ) (unless

notice

court otders otherwise, mandate issues 20 days aftet written opinion filed). Consequently, the
time to fìle in this Court began on September 7 , 2010 ar.d, absent tolling, was to expire one
year later on September

7,2011.

See

28 U.S.C. 2244(d)(1)(A) (ptoviding that a conviction is

fìnal "the date on which the judgment became fìnal by the conclusion of direct review or the
expiration of the time for seeking such review").
F{owever, pdor
Petitioner fìled

a

to the expiration of the limitations pedod on September 7,

post-conviction motion which tolled the limitations pedod. Ta/or

u.

201,1.,

I¿e,186

F.3d 557, 561. (4th Cff. 1999) (concluding that state post-conviction ptoceedings genetally toll

the federal habeas deadline for "the entire pedod of state post-conviction proceedings, ftom

initial filing to fìnal disposition by the highest court (whethet decision on the medts, denial of
certiotari, ot expiration of the petiod of time to seek furthet appellate review)."). Specifically,
Petitionet fìled a MÂR in state court onJune 3,201L,269 days after the onset of the limitations
pedod on Septembet 7, 2010. The MAR was denied on ,\ugust 4,20L1.. On Septembet L9,
201.L,

Petitionet filed a petition for writ of certiorad with the

Noth

Caroltna Court of Appeals

to teview the denial of the MÂR, which was denied on October 6,20'1.1,. The federal habeas
imitations pedod resumed running at that time and expired 96 days later on January 10,2012.

limitation pedod (which it was not for the reasons described eadier), his federal habeas Petition would
still be untimely.

5

-|¿e

N.C.G.S. $ 7a-28(a) ("[d]ecisions of the

Cout of Appeals upon teview of motions fot

apptopdate relief listed in N.C.G.S. 515A-1415@) ate ftnal and not subject to furthet review

in the Supreme Court by

appeal, motion, certification,

writ, or otherwise."). Petitionet

submitted the instant federal habeas petition in March of 201,5. It is therefore more than three
yeats late

As noted, Petitioner filed additional post-conviction proceedings in state court, such
as a

motion for DNA testing in February of 2013 and a second MÂR in Novembet of 2014.

Flowevet, he did not make any of these additional collateral filings in the state courts until
201,3,weII aftet his time to file a federal habeas petition hzd al'r.eady expired. State fìlings made

after the fedetal limitations pedod has passed do not restart ot revive the fìling pedod.
Minter

u.

See

Beck,230 F.3d 663, 665 (4th Cir. 2000)

The Coutt notes further that even if Petitionet's September 1,3,2010 petition fot wtit

of ceniotati with the Supreme Court of

Noth

Carohna were sufficient to statutorily toll the

limitation period (which it was not for the teasons descdbed eatliet), his Petition would still
be untimely. That petition was denied on March 10,201,'1.. State u. G/adden,365 N.C. 88 (2011).

Consequendy, undet this alternative hypothetical analysis, Petitionet's direct review would

thetefore have been îtnal at the latest 90 days later on June 8, 201.L.
537 U.S. 522,521 Q003) (holding

that"lÍ]inality

attaches when this

See

Clry u. United

Coutt affirms

a

States,

conviction

on the medts on direct teview or denies a petition fot a wdt of cettiorad, ot when the time

fot filing a cettorari petition expkes." (intetnal citations omitted));

¡ee al¡o

(allowing petitioners 90 days after highest state appellate court's denial

Sup. Ct. R. 13.1

to file for writ of

certiorari). The one year limitations pedod would have then been statutodly tolled when

6

Petitionet filed his state court MAR onJune 3,2011 until the North Caroltna Court of Appeals
declined to review denial of the state court MAR on October 6,201,1. .At this point the oneyear limitation pedod would have begun and it would have expired 365 days latet on Octobet

6,2012. Petitioner submitted the instant federal habeas petition in March of 2015. Therefore,
even under this analysis, the Petition is more than two years late.
-A.s

noted tepeatedly, Petitionet fìled additional post-conviction ptoceedings in state

court, such as a motion fot DNA testing in February of 201.3 and a second MAR in Novembet

of 201.4. However, he did not make any of these additional collatetal filings in the state courts
urni.l2013, well after his time to file a federal habeas claim had akeady expfued even under this
alternative analysis. As explained, state filings made after the federal limitations pedod has
passed do not restart

ot revive the fìling period.

See

Minter, 230 F.3d

^t

665.

Subparagraph (B)
Petitionet may also be arguing that he is entitled to alatet stattìng date of his one-yeat

limitation pedod because of an impediment cteated by state action. However, any argument
under subparagtaph

@)--hich

accounts fot an "impediment to filing an application cteated

by State action in violation of the Constitution or laws of the United $¡2¡s5"-¿1so fails. Green,
515 F.3d

^t303-04.

More specifically, Petitionet faults Notth Carolina Pdsoner Legal Services

for the untimeliness of his fedetal habeas Petition. (Docket E.rtty 1, Attach. 4 at

34-35.)

However, NCPLS is not a state actor and, as explained in greater detail below, nothing NCPLS
did caused Petitionet to miss his federal habeas deadline.
1aø:,

See

Brlant

Nos. 92-6339, 92-6340, 93-6563, 1.9% V,ry, 291448,

^t

u.

x'1.

N.C.

PrisoruerLngal Serat,

(4th Cit. Aug. 2, 1993)

(unpublished) (recogntzing "NCPLS and its attorneys are not state actots"); Snith u. Roands,

7

657 F. S.rpp. 1327,1,331,-32 (E.D.N.C. 1,986); Winkfeld ,. BagltJ,66 tr.

Clr.2003) ("'Section 2244(d)(1)(B) requires

a causal

,\pp'x 578, 582-83 (6th

relationship between the unconstitutional

state action and being ptevented ftom filing the petition."' (quoting Dan,ëer u. Bissonnelte,l54

F.Supp.2d 95, 105 @.Mass. 2001));

see also

Polk Coanry u. Dodson,454 U.S. 31,2, 325 (1981)

(rolding that a state-paid public defender did not act undet color of state law when
teptesenting a cnminal defendant). Any arguments along these lines fail.

Subparagraph (D)
Petitionet also appeats to invoke subpatagtaph (D) pocket Entry 11 at 2), which
provides that a Petitioner may fìle an application for

a

writ of habeas corpus within one year

of "the date on which the factual ptedicate of the claim or claims presented could have been
discovered thtough the exetcise of due diligence." 28 U.S.C. S 2244(d)(1XD). However, the
factual predicates to Petitioner's instant claims were (or could have been with the exercise

of

due diligence) all plainly known to him at the latest by October 6,201"1., the date on which the

North Caroltna Court of Appeals denied certiorari teview of the denial of his fìrst MAR. In
fact, Petitionet raised the issue of perjury and prosecutodal misconduct

in his fìrst

Mr{.R.

(Docket Etrtry 9, Ex. C.) Petitioner also knew that the charges against co-defendant \X/est
wete voluntadly dismissed, because he taised the issue on direct appeal. Cladden,206 N.C.
.,\pp. at 331. Petitioner has failed to provide any reason to conclude that this subparagraph
waffants alater statting date of the one year deadline to file.

Ecuitable Tollins
Petitioner also makes a number

of

equitable tolling arguments. The doctrine

equitable tolling applies to the time bar set forth in Section 2244. Holland

8

u.

of

Florida,130 S.Ct.

2549,2562 Q010). Equitable tolling may excuse an otherwise untimely fìling when

a

petitioner

"shows '(1) that he has been pursuing his dghts diligently, and Q) that some extraotdinary
citcumstance stood in his way' and ptevented timely

filing." Id. (qluo:dLng Pace u. DiGaglielmo,

544 U.S.408,418 (2005)). However, none of these arguments have medt.

First, Petitioner implies that failing to review his Petition on the metits would be

a

gr^ve "miscardage of justice." (Docket E.rtry 1, Attach. 4 at 34.) This contention simply
devolves into an argurnent that his claims have merit, which is generally irelevant
timeliness analysis.

See Rouse,339

to the

F.3d at251,-52.

Second, Petitioner claims that his ability to fìle a federal habeas petition was impaired

by his lack of alaw hbrz;ry,lack of

a,

copy machine, and by

NCPLS. (Docket E.rtry 1, Attach

4 at35.) However, the state is not constitutionally required to provide prison libraries or legal

materials or copy machines, but satisfies its obligations thtough NCPLS.

See Bargess u.

Herron,

No. 1:11CV420,201,1,WL 5289769, at *2 (VI.D.N.C. Nov. 2, 201,1) (unpublished). Moteover,
Petitioner's claim that he missed his deadline because NCPLS held his documents too long is
also insuffìcient

to toll the deadline. (Docket Entty

1,

'\ttach 4 at35.) Conclusory assertions

that a lengthy NCPLS teview process caused a petitioner to miss the deadline are routinely
dismissed.

See, eg Paniagua u.

Dail, No. 1:12CV1253,2013 WL 4764586, *4

¡.

6. 04.D.N.C.

Sept. 4, 2013); Rhew u. Beck, 349 F. Supp. 2d 97 5,978 O4.D.N.C. 2004).

Petitioner also appends

to his Petition

(Docket E.rtry 1, Attach 3 at 40, 44,

Attach. 7 at 1.4-1.1.) From this,

47

, 50-51,

cortespondence sent

57

,

to him by NCPLS.

59-62, 64, 66-67 , 70-71.; -dttach. 4 at 27;

it is evident that NCPLS

reviewed Petitioner's case, but

ultimately concluded that thete were no legal grounds upon which

9

to

challenge the

convictions.

Qd.,

see

also id.

Attach. 3 at 59-62.) NCPLS attorneys are not required to take

evetT prisonet action brought by inmates and mây use their ptofessional judgment when

detetmining whether or not to provide representation in amatter. Salters

u. Batler,

No. 5:06-

CT-3073-H,2006WL 4691,23J,x 1 (E.D.N.C. Oct. 19, 2006), ajtd 214 F. App'x 267 (4th

Ctu.

Jan.24,2007). The fact that NCPLS may have ultimately declined to tepresent Petitionet does

not change the fact that the state has met its obligation to ptovide inmates adequate

the courts.

See, e.9.,

Id.,; Hood

u. Jackson,

access

to

No. 5:10-HC2008-FL,201,0\X1- 4974550, at*2

@,.D.N.C. Dec. 1, 201,0) (unpublished) (citing cases); Dockery u. Beck, No. 1:02CV00070,2002

WL

3281,3704, at x2 (14.D.N.C. -August 1,2002) (unpublished).3

Nevertheless, this correspondence does walraît some additional discussion. In thtee

lettets, NCPLS informed Petitionet that

it

had calculated June 8, 20'1.2-tathet than the

January 1,0,2012 date calculated by the Coutt above-as the expiration

of

one-yeaLr deadline

by which Petitioner had to file a federal habeas petition. (Docket Er,tty 1, .A.ttach. 3, at 50,

62,

67.)

However, NCPLS's miscalculation

Petitionet's Petition timely.

Á.s an

of the one-year

57 ,

deadline does not tender

initial matter, courts addtessing equitable tolling have found

3

Petitioner asserts that in analyÅng his case NCPLS focused on immaterial issues and overlooked
meritorious ones. (Docket Entry 1, ,{ttach 4 at 35.) Petitioner essentially contends that he too
consequently spent his one-year deadline putsuing fruitless endeavots (such as DNA testing) on the
basis of NCPLS's misundetstanding of his case. Qd.) The record does not beat Petitioner's
interptetation out and, in any event, Petitionet has not satisfied either element (diligence or
extraordinary circumstances) that would w^rr^nt equitable tolling.
10

that ignotance of the filing deadline is not

aî

extraordinary ckcumstance.a Moteover, coutts

have been reluctant to consider a mistake of counsel gtounds for equitable tolling.s

It is equally impotant to note that even if some pedod of equitable tolling was proper

(fot example, ftom Jantary 10, 2012 until June 8

201,2)

on the grounds that Petitioner

detdmentally telied on the erroneous June 8, 2012 NCPLS deadline, Petitionet would still not
be entitled to tolling sufficient to render his Petition timely. This is because Petitioner let the

June 8, 201,2 date pass and did not file his fedetal habeas petition until Match of 2015, close

to thtee yeats later. This is despite the fact that NCPLS infotmed him on ot about March21,,
201.2 that

it would not accept his case, informed him again of the one-year deadline, told him

it expired on June 8, 201,2, and provided him a post-conviction manual. pocket Entry 1,
Attach. 3 at 59-61;

see

also id.

at 50-51.)

Petitionet thetefore failed

to

¿ç¡ diligently even under this purely hypothetical

altetnative analysis in which he is entitled to some degree of equitable tolling. ,\dditionally,
even under this altetnative analysis Petitioner did not file his motion for

DNÂ testing or file

+

See, e.g., United States u. Sosa,364 tr.3d 507, 51,2 (4th Cir. 2004); Jones u. S. Carolina, No. 4:05-cv2424-CMC,2006WL 1,876543, at+3 (D.S.C.June 30, 2006) (citatton omitted); see also Marsh u. Soares,
223 F.3d 1277,1220 (10th Cir. 2000) ("[]gnorance of the law, even for an incatcetated pro se
petidoner, generally does not excuse prompt ftlirg.') (citation omitted).

5

See, eg., Rouse, 339 F.3d
248 ("[A] mistake by a p^rty's counsel in interpreting a statute of
^t
limitations does not present the extraordtnary cfucumstance beyond the party's control where equity
should step in to give the party the benefit of his erroneous understanding)); Beery u. Aalt,312 F.3d
948, 951, (8th Cir. 2002) ("Ineffective assistance of counsel generally does not w^nraiÍtt equitable
tolling."); Ebrbardt u. Caúledge, No. 3:08-cv-2266-CMC,2009WL2366095,at*4 p.S.C.July 30,2009)
ftolding that reliance on post convicdon appellate counsel's incotrect advice regatding the filing
deadline for does not entitle petitioner to equitable tolling); $ Goedeke a. McBride, 437 F. Snpp. 2d 590,
597-98 (S.D.!Ø.Va. 2006) (finding statute of limitations equitably tolled when petitioner's counsel
consistently represented that he would fùe ahabeas petition and petitionet had no reason to disbelieve

his counsel's assurances).
11

his second MAR until February of 201.3 and beyond, well aftet the expiration of the purpoted
June 8, 201,2 deadltne. These fìling do not revive the filing period.

See

Minter,230F.3d

^t665.

Thfud, Petitioner's explanation that his Petition was untimely because he was seeking
legal representation from various entities is simply not sufficient grounds for equitable tolling

inhis case. (DocketEttty

1,

at34-35.)

SeeJihadu. Haass,267

F3d 803,806 (8th Cir.2001).

Likewise, any alleged delay by the Innocence Commission, ot some comparable body, does

îot

watratrt tolling for the time

it took to review, and decline to address,

(Docket E.rtty 1, Attach. 3 at56,58, 68.)

$fL 1798609, at x2 (W.D.N.C.
statute

See

Petitioner's case.

ll/itherpoon u. White, No. 1:12-cv-352-RJC,201,3

,{.pril 29,201,3) (unpublished) (refusing to equitably toll the

of limitations when the Noth

Catolina Âctual Innocence Inquiry Commission

allegedly delayed in responding to the petitionet's request fot help).

Finally, the Supteme Court tecognized in Mtpøigin u. Perkins,133 S.Ct. '1,924, 1,928
Q01,3),

an acttal innocence exception to AEDPA's time limitations. To establish actual

innocence, "a petitioner must show that

it is more likely than not that no teasonable juror

would have found petitioner gullty beyond a rezsonaltle doubt."
327 (1,995);

see

Mtpaigin, 133 S.Ct.

^t1935.

Schlaþ u. De/0,513 U.S. 298,

"To be credible, such a claim requites petitioner

to support his allegations of constitutional erot with new reliable evidence-whethet it be
exculpatory scientific evidence, trust'worthy eyewitness accounts,

or critical physical

g\¡fds¡ss-¡hat was not presented at ttial." Schlap,513 U.S. at 324. Here, Petitionet asserts
that he is innocent and explains that a numbet of state witnesses petjuted themselves on the
stand when testi$ring against him and that the state prosecutors wete well

In support, Petitioner provides tial

^w^te

of this perjury.

testimony> newspaper clippings tegarding his ttial, and

1,2

evidence of his employment history. (Docket Entty 1, Exs. 5,

And, even

if it was, it

7.) This is not new evidence.

cettainly does not meet the high standard

of the actual

innocence

exception to the fedetal habeas deadline.

Motion to Aoooint Counsel
Petitionet has also filed a motion seeking the appointment of counsel. (Docket Enry

6.)

However, the matters cited by Petitioner in his pleadings reflect conditions faced by

virtually all prisonet litigants and thus, by defìnition, do not quali$r as ckcumstances of the
sort that w^rfa;nt appointment of counsel. Nor is

it

apparent that Petitionet eithet has

a

colorable claim or lacks the ability to present any such claim. Petitioner has not demonsrated

good cause fot the appointment of counsel, not has he shown that justice requires the
appointrnent of counsel. The request is denied.

Conclusion

In the end, the Petition was filed out of time and Respondent's Motion to Dismiss
should be granted.

An evidentiary

hearing

in this matter is not

wartanted nor is the

appoinrnent of counsel.

IT IS THERFORE ORDERED that Petitioner's Motion for the Appointment of
Counsel (Docket E.rtty 6) be

DENIED.

IT IS THEREFORE RECOMMENDED

that Respondent's Motion to Dismiss

(Docket Er,tty 8) be GRANTED, that the Petition (Docket Entty 1) be DISMISSED, and
thatJudgment be entered dismissing this action.

e

U

December ,2015
13

tes Magistrate Judge