CHRISTIAN v. WASHINGTON
Filing
10
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 2/8/2016, RECOMMENDED that Respondent's Motion for Summary Judgment (Docket Entry 4 ) be granted, that the Petition (Docket Entry 1 ) be denied, that the Amended Petition (Docket Entry 8 ) be dismissed (as untimely) in part and denied (as redundant and meritless) in part, and that judgment be entered against Petitioner in this action without issuance of a certificate of appealability. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DARWIN V. CHRISTIAN,
Petitioner,
v.
OLIVER WASHINGTON,
Respondent.
)
)
)
)
)
)
)
)
)
1:15CV253
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, filed
a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Docket Entry 1),1 which he later purported
to amend (Docket Entry 8; see also Docket Entry 9 (“Memorandum of
Law in Support of Amended Petition for Writ of Habeas Corpus”)).
For the reasons that follow, this Court should deny habeas relief.
I.
A
jury
in
the
BACKGROUND
Superior
Court
of
Guilford
County
found
Petitioner guilty of attempted larceny from a merchant and simple
assault in cases 11CRS091498 and 11CRS091499, whereupon he pleaded
guilty to habitual felon status in case 12CRS024062 and received a
consolidated prison sentence of 117 to 150 months.
(Docket Entry
1, ¶¶ 1-6; see also Docket Entry 5-4 at 23 (Verdict), 24-27 (Plea
1
Along with the standard form, the Petition includes documents from
Petitioner’s underlying state case.
(See Docket Entry 1.)
Respondent also
attached various documents from that state case to his summary judgment brief.
(See, e.g., Docket Entries 5-4, 5-7 - 5-14, 5-16, 5-18.) Petitioner’s summary
judgment response does not contest the authenticity of any of the documents
tendered by Respondent. (See Docket Entry 7.) Pin cites to the court documents
incorporated into the Petition and submitted with Respondent’s summary judgment
brief refer to the page number that appears in the footer appended to such
documents upon their docketing in the Court’s CM/ECF system.
Tr.), 31-32 (Judgment).) Petitioner lost his direct appeal. State
v. Christian, No. COA13-162, 229 N.C. App. 491 (table), 750 S.E.2d
918
(table),
2013
WL
4716367
(N.C.
Ct.
App.
Sept.
3,
2013)
(unpublished), review denied, 367 N.C. 263, 749 S.E.2d 852 (2013).2
On
April
4,
2014,
the
Superior
Court
stamped-filed
Petitioner’s Motion for Appropriate Relief (“MAR”) (see Docket
Entry 5-7 at 2), which Petitioner signed on April 1, 2014 (see id.
at 18; see also Docket Entry 1 at 32 (Letter dated Apr. 7, 2014,
from
Guilford
County
Superior
Court
Clerk
“acknowledg[ing] receipt of [his MAR]”).)
to
Petitioner,
By order dated and
stamped-filed May 2, 2014, the Superior Court denied relief,
pursuant to N.C. Gen. Stat. § 15A-1419(a)(3), because Petitioner
“could have raised his [MAR] claims in his appeal.”
5-8 at 2.)
(Docket Entry
On May 22, 2014, the Superior Court stamped-filed
Petitioner’s “Supplemental [MAR]” (see Docket Entry 5-9 at 2),
which he (reportedly) signed and mailed on April 1, 2014 (see id.
at 12, 24).
By order dated May 28, 2014, and stamped-filed June 2,
2014, the Superior Court denied relief, pursuant to N.C. Gen. Stat.
§ 15A-1419(a)(3), because Petitioner “could have raised his [MAR]
claims in his appeal.”
(Docket Entry 5-10 at 2.)
On June 5, 2014,
the Superior Court stamped-filed another MAR (see Docket Entry 5-11
2
The Petition omits any allegation as to whether, on direct appeal,
Petitioner sought certiorari review by the United States Supreme Court (see
Docket Entry 1, ¶ 9(h)), but the Amended Petition concedes that he did not
(Docket Entry 8, ¶ 9(h)). Independent research also has revealed no such filing.
In addition, the Petition mistakenly lists Petitioner’s efforts to obtain
appellate review of the Superior Court’s denial of collateral relief as his
direct appeal. (Compare Docket Entry 1, ¶¶ 8, 9, with id., ¶¶ 10, 11.) The
Amended Petition corrects that mistake. (See Docket Entry 8, ¶¶ 8, 9.)
-2-
at
2),
as
well
as
a
Motion
for
Preparation
of
Stenographic
Transcript (see id. at 15), both of which Petitioner (reportedly)
signed on May 29, 2014 (see id. at 12, 16).
By orders dated and
stamped-filed on June 11, 2014, the Superior Court denied those
motions.
(Docket Entry 5-12 at 2-4; see also id. at 2 (“The issues
raised by [Petitioner] in this MAR have either previously been made
in the earlier MAR or in his appeal, or could have been made in
such earlier MAR or appeal.”).)3
On July 16, 2014, Petitioner filed a certiorari petition with
the North Carolina Supreme Court (apparently seeking review of the
Superior Court’s denial of collateral relief), which the North
Carolina Supreme Court dismissed by order issued August 19, 2014.
State v. Christian, 367 N.C. 531, 762 S.E.2d 455 (2014).4
On
October 13, 2014, the North Carolina Court of Appeals stamped-filed
a
certiorari
petition
(see
Docket
Entry
5-14
at
Petitioner signed on October 8, 2014 (see id. at 13).5
2),
which
By order
dated October 20, 2014, the North Carolina Court of Appeals denied
that certiorari petition. (Docket Entry 1 at 16; Docket Entry 5-16
3
The Petition appears to reference only the last of the above-cited MARs
(as to which it correctly ascribes a denial date of June 11, 2014, but variously
(and, save one instance, incorrectly) attributes filing dates of June 5, May 2,
May 20, May 20, and May 20, 2014, respectively). (See Docket Entry 1, ¶¶ 11(a),
12(Ground One)(d)(2), (Ground Two)(d)(2), (Ground Three)(d)(2), & (Ground
Four)(d)(2).) The Amended Petition’s account of the filing and denial dates
associated with Petitioner’s MARs, however, matches the dates noted above in the
body.
(See Docket Entry 8, ¶¶ 11(a)-(c), 12(Ground One)(d)(2), (Ground
Two)(d)(2), (Ground Three)(d)(2), & (Ground Four)(d)(2).)
4
The Petition includes a copy of that order.
(See Docket Entry 1 at 31.)
5
At one point, the Petition mistakenly gives October 21, 2014, as the
filing date of that certiorari petition (see Docket Entry 1, ¶ 11(b)(3)), but
elsewhere properly cites a filing date of October 13, 2014 (see id., ¶ 12(Ground
One)(d)(6), (Ground Two)(d)(6), (Ground Three)(d)(6), & (Ground Four)(d)(6)).
-3-
at 2.)6
On November 5, 2014, the North Carolina Supreme Court
stamped-filed a discretionary review petition (see Docket Entry 1
at 18), which Petitioner signed on October 28, 2014 (see Docket
Entry 1 at 29).7
By order issued December 18, 2014 (reduced to
writing by the North Carolina Supreme Court Clerk on December 22,
2014)), the North Carolina Supreme Court denied that discretionary
review petition.
(See id. at 17; Docket Entry 5-17 at 2.)8
Petitioner then commenced this action by filing his Petition,
which he signed on March 19, 2015, and which the Court docketed on
March 24, 2015.
(Docket Entry 1.)
On April 23, 2015, Respondent
answered (Docket Entry 3) and moved for summary judgment (Docket
Entry 4; see also Docket Entry 5 (Respondent’s summary judgment
brief)).
Petitioner responded in opposition to that summary
judgment motion.
(Docket Entry 7.)
Thereafter, on December 14,
2015, the Court docketed an Amended Petition (Docket Entry 8) and
Memorandum of Law in Support of Amended Petition for Writ of Habeas
Corpus (Docket Entry 9), both of which Petitioner verified and
reported mailing on December 7, 2015 (see id. at 10, 11).
6
In all but one place, the Petition correctly identifies October 20, 2014,
as the date of that denial. (See Docket Entry 1, ¶¶ 11(b)(1)-(4), 12(Ground
One)(d)(6), (Ground Two)(d)(6), & (Ground Four)(d)(6); but see id., ¶ 12(Ground
Three)(d)(6) (listing December 20, 2014).) The Amended Petition also reports
October 20, 2014, as the denial date.
(See Docket Entry 8, ¶ 12(Ground
One)(d)(6), (Ground Two)(d)(6), (Ground Three)(d)(6), & (Ground Four)(d)(6).)
7
The Petition inconsistently (and twice errantly) offers filing dates for
that discretionary review petition of November 5, November 25, November 5,
November 5, and October 5, 2014, respectively. (See Docket Entry 1, ¶¶ 11(c),
12(Ground One)(e), (Ground Two)(e), (Ground Three)(e), & (Ground Four)(e).)
8
Consistent with the above-cited documents, the Petition uniformly lists
December 18, 2014, as the date of that denial. (See Docket Entry 1, ¶¶ 11(c),
12(Ground One)(e), (Ground Two)(e), (Ground Three)(e), & (Ground Four)(e).)
-4-
II.
DISCUSSION
The Petition identifies these four grounds for relief:
1) “Ineffective Assistance of Trial Counsel” (Docket Entry 1,
¶ 12(Ground One));9
2)
“Ineffective
Assistance
of
Trial
Counsel”
(id.,
¶ 12(Ground Two));
3)
“Ineffective
Assistance
of
Appellate
Counsel”
(id.,
¶ 12(Ground Three)); and
4) “Appellate Counsel Was Ineffective on Appeal by Failing to
Raise [Certain Arguments]” (id., ¶ 12(Ground Four)).
The Amended Petition, in turn, purports to raise these four
grounds for relief:
1) “Ineffective Assistance of Trial Counsel” (Docket Entry 8,
¶ 12(Ground One));
2) “Trial Court erred when it allowed amendment to indictment
#11CRS91498” (id., ¶ 12(Ground Two));
3) “The evidence was insufficient to support a conviction for
attempted larceny from a merchant” (id., ¶ 12(Ground Three)); and
4) “The State failed to disclose favorable evidence” (id.,
¶ 12(Ground Four)).
A. Petition, Grounds One and Two:
Ineffective Assistance (Trial Counsel)
Grounds One and Two of the Petition seek relief based on the
alleged ineffectiveness of Petitioner’s trial counsel. (See Docket
9
The hand-written portions of the Petition utilize all capital letters
(see, e.g., Docket Entry 1, ¶ 12(Ground One)); however, this Memorandum Opinion
uses standard capitalization conventions when quoting the Petition.
-5-
Entry 1, ¶ 12(Ground One) & (Ground Two).)
As to Ground One,
Petitioner offered these “[s]upporting facts” (which set out three
distinct ineffective assistance of trial counsel claims):
“[1]
[d]efence [sic] counsel told [the] jury that [Petitioner] was
guilty of shop-lifting during opening arguements [sic], [2] defence
[sic]
counsel[]
fail[ed]
to
object
to
the
amending
of
the
indictments, [and 3] defence [sic] counsel[] fail[ed] to have
[Petitioner] presented [sic] during trial proceedings.”
¶ 12(Ground One)(a).)
(Id.,
In virtually identical fashion, Ground Two
alleges these “[s]upporting facts” (repeating the same three trial
counsel ineffectiveness claims from Ground One):
“[1] [d]efence
[sic] counsel[] told [the] jury that [Petitioner] was guilty of
shop-lifting during opening arguements [sic], [2] defence [sic]
counsel[] failed to object to the amending of indictments, [and 3]
defence [sic] counsel proceed[ed] with trial proceeding without
[Petitioner] being present at court.”
Like
Grounds
One
and
Two
of
(Id., ¶ 12(Ground Two)(a).)
the
Petition,
Petitioner’s
Supplemental MAR raised claims that his trial counsel provided
ineffective assistance (1) by admitting in his opening statement
that Petitioner committed shop-lifting and (2) by failing to object
to the amendment of the attempted larceny indictment.
Entry 5-9 at 5, 8-9.)
(See Docket
As noted in Section I, the Superior Court
denied those claims, pursuant to N.C. Gen. Stat. § 15A-1419(a)(3),
because Petitioner “could have raised [them] in his appeal.”
(Docket Entry 5-10 at 2.)
As those two claims arose from matters
of record at the time of Petitioner’s direct appeal, the Superior
-6-
Court properly concluded that he could have presented them then and
that Section 15A-1419(a)(3) barred their review via MAR.
See
Lawrence v. Branker, 517 F.3d 700, 715 (4th Cir. 2008) (recognizing
that Section 15A-1419(a)(3) bars collateral claims of ineffective
assistance arising from events in the record at the time of direct
appeal, including concession of guilt by trial counsel).
“Federal habeas review of a state prisoner’s claims that are
procedurally
defaulted
under
independent
and
adequate
state
procedural rules is barred unless the prisoner can show cause for
the default and demonstrate actual prejudice as a result of the
alleged violation of federal law, or prove that failure to consider
the claims will result in a fundamental miscarriage of justice.”
McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000).
Moreover, the
Fourth Circuit “ha[s] consistently held that § 15A-1419(a)(3) is an
independent and adequate state ground for purposes of procedural
default.” Lawrence, 517 F.3d at 714. Accordingly, Petitioner must
show either cause and actual prejudice or a miscarriage of justice,
in order to proceed with ineffective assistance claims based on (1)
his counsel’s opening statement admission that Petitioner committed
shop-lifting
and
(2)
indictment amendment.
his
counsel’s
failure
to
object
to
the
Petitioner’s summary judgment response,
however, makes no such showing.
(See Docket Entry 7.)
The Petition does allege that Petitioner’s appellate counsel
provided ineffective assistance by failing to raise on appeal “that
trial
counsel
was
ineffective
[1]
by
telling
the
jury
that
[Petitioner] was guilty of shop-lifting during opening arguments
-7-
[and] . . . [2] by failing to object to the amending of the
indictments . . . .”
(Docket Entry 1, ¶ 12(Ground Four)(a).)
“In
some circumstances, a defendant may establish cause [for procedural
default] if he was represented by counsel whose performance was
constitutionally ineffective under the standards established in
Strickland v. Washington, 466 U.S. 668 (1984).”
Fowler v. Joyner,
753 F.3d 446, 460 (4th Cir. 2014) (internal parallel citations
omitted).
However,
as
Respondent
correctly
has
observed,
“Petitioner did not fairly and squarely raise [those] ineffective
assistance of appellate counsel claim[s] in any of his three MARs.”
(Docket Entry 5 at 11 (citing Docket Entries 5-7, 5-9, and 5-11).)
In other words, any such claim of “ineffective assistance of
[Petitioner’s]
appellate
defaulted . . . .”
2000);
see
also
counsel[]
was
itself
procedurally
Oken v. Corcoran, 220 F.3d 259, 265 (4th Cir.
N.C.
Gen.
Stat.
§
15A-1419(a)(1)
(erecting
procedural bar where, “[u]pon a previous [MAR], the defendant was
in a position to adequately raise the ground or issue underlying
the present [MAR] but did not do so”); Boyd v. French, 147 F.3d
319, 332 (4th Cir. 1998) (recognizing that Section 15A-1419(a)(1)
represents independent and adequate state procedural rule); Breard
v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (“A procedural default
also occurs when a habeas petitioner fails to exhaust available
state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement
would
now
find
the
claims
(internal quotation marks omitted)).
-8-
procedurally
barred.”
Petitioner “has also failed
to make any showing of ‘cause’ and ‘prejudice’ [or a miscarriage of
justice] to excuse this last procedural default,” id.
Entry 7.)10
(See Docket
“Thus, the alleged ineffective assistance of [his]
appellate counsel cannot serve as ‘cause’ to excuse [Petitioner’s]
failure to raise [these two trial ineffectiveness] claim[s] on
direct appeal.
Consequently, [the Court should] reject [these two
trial ineffectiveness] claim[s] as procedurally defaulted . . . .”
Oken, 220 F.3d at 265 (internal citation omitted).
Alternatively, the two, instant ineffective assistance of
trial counsel claims fail on the merits for reasons well-explained
by Respondent (particularly given the deference accorded counsel
under Strickland, see Harrington v. Richter, 562 U.S. 86, 105
(2011) (“Surmounting Strickland’s high bar is never an easy task.
. . .
Even under de novo review, the standard for judging
counsel’s representation is a most deferential one.”)):
First, Petitioner was asked by [the trial judge] . . .
whether he had previously consented to trial counsel’s
decision to admit that he was guilty of shop-lifting.
Petitioner admitted he had given his prior consent.
Thus, no professional dereliction or prejudice under
Strickland has been shown.
Second, although counsel
consented to the prosecutor’s correction of a scrivener’s
10
Petitioner could not have relied on Martinez v. Ryan, ___ U.S. ___, 132
S. Ct. 1309 (2012), and Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911 (2013),
to overcome his procedural default of his appellate ineffectiveness claim(s) for
failure to raise on direct appeal the two instant trial counsel ineffective
assistance claims. See Long v. Butler, 809 F.3d 299, 315 (7th Cir. 2015); Dansby
v. Hobbs, 766 F.3d 809, 833 (8th Cir. 2014); Reed v. Stephens, 739 F.3d 753, 778
n.16 (5th Cir.), cert. denied, ___ U.S. ___, 135 S. Ct. 435 (2014); Hodges v.
Colson, 727 F.3d 517, 531 (6th Cir. 2013); Banks v. Workman, 692 F.3d 1133, 114748 (10th Cir. 2012); Green v. Ballard, Civ. Action No. 3:02-1348, 2015 WL
1612198, at *5, 8, 22 (S.D.W. Va. Apr. 10, 2015) (unpublished); Burns v. Bush,
No. 8:13CV3392-BHH-JDA, 2014 WL 8272310, at *17 (D.S.C. Dec. 22, 2014)
(unpublished), recommendation adopted, 2015 WL 1298662 (D.S.C. Mar. 23, 2015)
(unpublished), appeal dismissed, 622 F. App’x 265 (4th Cir. 2015); but see Nguyen
v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013).
-9-
error on the indictment, i.e., changing the heading from
larceny of anti-inventory device to [attempted] larceny
of a merchant, there could be no possible ineffectiveness
here. If trial counsel had objected to the indictment,
even in the unlikely event the objection was sustained,
the prosecutor would simply have obtained a superceding
indictment under N.C.G.S. § 15A-646 (2011), and proceeded
with the trial. The only possible result would have been
delay.
There is no professional dereliction or
reasonable probability of a different result under
Strickland.
(Docket Entry 5 at 5 (internal parenthetical citations omitted)
(citing Docket Entry 5-18 at 5-6, 47-48).)
As to Petitioner’s remaining trial counsel ineffectiveness
claim, i.e., for allowing part of the trial to occur without
Petitioner present (see Docket Entry 1, ¶ 12(Ground One)(a) &
(Ground Two)(a)), the record establishes that Petitioner did not
raise any such claim on direct appeal or via his MARs (see Docket
Entries 5-5, 5-7, 5-9, 5-11).
A procedural bar therefore applies.
See N.C. Gen. Stat. § 15A-1419(a)(1) (procedurally barring claim
if, “[u]pon a previous [MAR], the defendant was in a position to
adequately raise the ground or issue underlying the present [MAR]
but did not do so”) & (3) (imposing procedural bar when, “[u]pon a
previous appeal the defendant was in a position to adequately raise
the ground or issue underlying the present [MAR] but did not do
so”); Lawrence, 517 F.3d at 714 (noting that Fourth Circuit “ha[s]
consistently held that § 15A-1419(a)(3) is an independent and
adequate state ground for purposes of procedural default”); Boyd,
147 F.3d at 332 (treating Section 15A-1419(a)(1) as independent and
adequate state procedural rule); Breard, 134 F.3d at 619 (“A
procedural default also occurs when a habeas petitioner fails to
-10-
exhaust available
state
remedies
and
the
court
to
which
the
petitioner would be required to present his claims in order to meet
the exhaustion requirement would now find the claims procedurally
barred.” (internal quotation marks omitted)).
Under these circumstances, Petitioner must show either cause
and actual prejudice or a miscarriage of justice, to advance a
federal
habeas
claim
that
his
counsel
provided
ineffective
assistance by failing to object to his absence from some part of
his trial.
See McCarver, 221 F.3d at 588.
Petitioner did not make
a showing of that sort in his summary judgment response.
Docket Entry 7.)
(See
Further, although the Petition asserts that
Petitioner’s appellate counsel acted ineffectively by omitting an
argument on appeal “that trial counsel was ineffective . . . by
proceeding
with
trial
proceedings
without
[Petitioner]
being
presented [sic] at trial during the proceedings” (Docket Entry 1,
¶
12(Ground
Four)(a)),
Petitioner
procedurally
defaulted
that
appellate ineffectiveness claim by failing to raise it in any of
his MARs (see Docket Entries 5-7, 5-9, 5-11).
See Oken, 220 F.3d
at 265; see also N.C. Gen. Stat. § 15A-1419(a)(1); Boyd, 147 F.3d
at 332; Breard, 134 F.3d at 619.
Finally, Petitioner has not shown
cause and actual prejudice or a miscarriage of justice to excuse
that procedural default.
(See Docket Entry 7.)11
11
The rulings in Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012),
and Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911 (2013), do not allow
Petitioner to save that defaulted claim. See Long v. Butler, 809 F.3d 299, 315
(7th Cir. 2015); Dansby v. Hobbs, 766 F.3d 809, 833 (8th Cir. 2014); Reed v.
Stephens, 739 F.3d 753, 778 n.16 (5th Cir.), cert. denied, ___ U.S. ___, 135 S.
Ct. 435 (2014); Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013); Banks v.
(continued...)
-11-
In the alternative, Petitioner neither cited any place in the
record that would reveal his absence from the trial nor otherwise
offered evidence of what part of the trial he missed; moreover, he
has not demonstrated how any such absence could have altered the
outcome of the case.
(See Docket Entry 1, ¶ 12(Ground One) &
(Ground Two); Docket Entry 7.)
Put another way, as to this claim,
Petitioner “has provided only conclusory allegations which meet
neither the
error
analysis.”
nor
the
prejudice
prong
of
the
Strickland
Cano v. United States, Nos. 1:05CR354–4, 1:09CV321,
2009 WL 3526564, at *3 (M.D.N.C. Oct. 22, 2009) (unpublished),
recommendation adopted, slip op. (M.D.N.C. Dec. 29, 2009); see also
Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (“In order to
obtain an evidentiary hearing on an ineffective assistance claim or, for that matter, on any claim - a habeas petitioner must come
forward with
some
Unsupported,
conclusory
petitioner
to
an
evidence
that
the
allegations
evidentiary
claim
do
not
hearing.”),
might
have
entitle
abrogation
a
on
merit.
habeas
other
grounds recognized, Yeatts v. Angelone, 166 F.3d 255, 266 n.4 (4th
Cir. 1999); Gleason v. Warden, Winn Corr. Ctr., No. 07CV1408, 2010
WL 2777272, at *6 (W.D. La. May 10, 2010) (unpublished) (“It is not
the court’s obligation on a habeas petition to comb the record in
11
(...continued)
Workman, 692 F.3d 1133, 1147-48 (10th Cir. 2012); Green v. Ballard, Civ. Action
No. 3:02-1348, 2015 WL 1612198, at *5, 8, 22
(S.D.W. Va. Apr. 10, 2015)
(unpublished); Burns v. Bush, No. 8:13CV3392-BHH-JDA, 2014 WL 8272310, at *17
(D.S.C. Dec. 22, 2014) (unpublished), recommendation adopted, 2015 WL 1298662
(D.S.C. Mar. 23, 2015) (unpublished), appeal dismissed, 622 F. App’x 265 (4th
Cir. 2015); but see Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013).
-12-
search of evidence to support a conclusory claim.”), recommendation
adopted, 2010 WL 2777267 (W.D. La. July 13, 2010) (unpublished).12
Simply put, Grounds One and Two of the Petition fail as a
matter of law.
B. Petition, Grounds Three and Four:
Ineffective Assistance (Appellate Counsel)
Grounds Three and Four of the Petition allege ineffectiveness
by appellate counsel.
(Ground
Four).)
(See Docket Entry 1, ¶ 12(Ground Three) &
Specifically,
“[s]upporting facts”:
Ground
Three
relies
on
these
“Appellate counsel failed to raise that
trial counsel was ineffective by telling the jury that [Petitioner]
was
guilty
of
shop-lifting
arguements
[sic],
violating [his] rights to recieve [sic] a fair trial.”
(Id.,
¶ 12(Ground Three)(a).)
during
opening
In turn, Ground Four identifies the
following “[s]upporting facts”:
“[T]rial counsel was ineffective
by telling the jury that [Petitioner] was guilty of shop-lifting
during opening arguments, trial counsel was ineffective by failing
to object to the amending of the indictments and proceeding with
trial proceedings without [Petitioner] being presented [sic] at
trial during the proceedings.”
(Id., ¶ 12(Ground Four)(a).)
As documented in Subsection II.A.:
(1) Petitioner did not
present these appellate ineffectiveness claims in any of his MARs,
such that he has procedurally defaulted such claims under state and
12
In moving for summary judgment, Respondent identified one brief occasion
during which, prior to Petitioner’s arrival in the courtroom following a recess,
the trial judge asked the court clerk to hand out a draft of the jury
instructions. (See Docket Entry 5 at 5 (citing Docket Entry 5-18 at 75-76).)
Petitioner’s summary judgment response does not identify any prejudice he
incurred as a result of that interaction in his absence. (See Docket Entry 7.)
-13-
federal law; (2) Petitioner has failed to show either cause and
actual prejudice or a miscarriage of justice, as required to
overcome that procedural bar; and (3) alternatively, the underlying
trial ineffective assistance claims lack merit, such that any
related appellate ineffective assistance claims also lack merit,
see Carter v. Lee, No. 99–10, 202 F.3d 257 (table), 1999 WL
1267353, at *11 (4th Cir. Dec. 29, 1999) (unpublished) (“Appellate
counsel [is] not ineffective for failing to raise [an issue] on
appeal [that] is plainly without merit.”).
Accordingly, the Court
should deny relief on Grounds Three and Four of the Petition.
C.
Amended Petition
A habeas petition “may be amended . . . as provided in the
rules of procedure applicable to civil actions.” 28 U.S.C. § 2242.
Under said rules, “[a] party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it, or (B)
. . . 21 days after service of a responsive pleading . . . .”
R. Civ. P. 15(a)(1).
Fed.
Because (as shown in Section I) Petitioner
submitted his Amended Petition (Docket Entry 8) outside such
periods, it can proceed “only with [Respondent’s] written consent
or the [C]ourt’s leave,” Fed. R. Civ. P. 15(a)(2).
not so consented.
present.)
Respondent has
(See Docket Entries dated Dec. 14, 2015, to
As for leave of the Court, permission “to amend shall be
given freely, absent bad faith, undue prejudice to the opposing
party, or futility of amendment.”
F.3d 314, 317 (4th Cir. 2000).
United States v. Pittman, 209
Here, futility due to the Amended
Petition’s lack of merit, untimeliness, and redundancy warrants
-14-
denial of leave to amend.
See, e.g., Juniper v. Zook, ___ F. Supp.
3d ___, ___, 2015 WL 4620102, at *22 (E.D. Va. 2015) (“The
trial-ineffectiveness claim’s lack of merit shows that leave to
amend the § 2254 petition to add [that] claim would be futile.”);
Lowery v. United States, Nos. 3:09CV260RJC, 3:05CR216RJC, 2012 WL
2395192, at *3 (W.D.N.C. June 25, 2012) (unpublished) (“A cause of
action barred by the applicable statute of limitations is futile;
therefore, an untimely amendment can be denied on that basis.”
(citing Pittman, 209 F.3d at 317)), appeal dismissed, No. 12-7114,
2012 WL 5992225 (4th Cir. Dec. 3, 2012) (unpublished); Washington
v. Trotman, No. 5:11CV3058-F, 2011 WL 5101704, at *2 (E.D.N.C. Oct.
26, 2011) (unpublished) (“Because plaintiff’s proposed amendment is
. . . redundant to his original complaint . . ., the proposed
amendments are futile and leave to amend is due to be denied.”).
As to redundancy, with one exception, Ground One of the
Amended Petition simply repeats the three ineffective assistance of
trial counsel claims that appear in Grounds One and Two of the
Petition (and that, for reasons described in Subsection II.A., fall
subject
to
a
procedural
bar
or,
alternatively,
lack
merit).
(Compare Docket Entry 1, ¶ 12(Ground One(a) & (Ground Two)(a), with
Docket Entry 8, ¶ 12(Ground One)(a); see also Docket Entry 9 at 1-6
(discussing Ground One of the Amended Petition).)13
Those parts of
Ground One of the Amended Petition thus qualify as futile because
of their redundancy.
See Washington, 2011 WL 5101704, at *2.
13
In reiterating those claims, the Amended Petition and related brief do
not present facts sufficient to overcome the procedural bar or to make the claims
legally viable. (See Docket Entry 8, ¶ 12(Ground One); Docket Entry 9 at 1-6.)
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In regards to untimeliness, a one-year statute of limitations
applies to federal habeas claims.
28 U.S.C. § 2244(d)(1).
It
run[s] from the latest of –(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 discovered
through the exercise of due diligence.
Id.
Pursuant to Subparagraph (A),14 Petitioner’s conviction(s)
became final on or about February 5, 2014 (i.e., 90 days after the
North Carolina Supreme Court denied review on direct appeal on
14
The form Petitioner used to submit his Amended Petition directed him to
address any potential untimeliness issues under Section 2244(d)(1). (See Docket
Entry 8, ¶ 18.) In responding to that directive, Petitioner did not contend that
Subparagraphs (B), (C), or (D) rendered the claims in the Amended Petition
timely; to the contrary, he simply stated: “Petitioner has a Petition for Writ
of Habeas Corpus on file in this Court No. 1:15CV253. This is an amended Habeas
Corpus with attached Memorandum of Law.” (Id.) Nor does the record support a
finding that Subparagraphs (B), (C), or (D) would entitle Petitioner to any
delayed accrual of the federal limitations period in connection with the claims
in the Amended Petition.
First, as documented in Section I, Petitioner made
numerous filings in state and federal court between the completion of his direct
appeal and his filing of the Amended Petition, such that Subparagraph (B) lacks
any application here. Second, Subparagraph (C) does not attach to the Amended
Petition, because no claims therein concern a federal constitutional right newly
recognized by the United States Supreme Court. (See Docket Entry 8, ¶ 12(Ground
One), (Ground Two), (Ground Three), & (Ground Four); Docket Entry 9.) Third, the
factual predicates for all of the claims in the Amended Petition occurred or
otherwise became evident during Petitioner’s trial (i.e., before, not after, his
conviction) (see id.) and thus Subparagraph (D) does not benefit Petitioner.
-16-
November 7, 2013, Christian, 367 N.C. at 263, 749 S.E.2d at 852).
See Clay v. United States, 537 U.S. 522, 527 (2003) (holding that
“[f]inality attaches when this Court affirms a conviction on the
merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition
expires” (internal citations omitted)); see also Sup. Ct. R. 13.1
(allowing 90 days to seek certiorari after ruling by highest state
court).
The federal habeas limitations period then ran until at
least April 1, 2014, when (as documented in Section I) Petitioner
signed his first MAR, at which time 311 days of that one-year
period remained.
The filing of that MAR tolled the deadline for
federal
claims
habeas
post-conviction
for
“the
entire
period
of
state
proceedings,
from
initial
filing
to
final
disposition by the highest court (whether decision on the merits,
denial of certiorari, or expiration of the period of time to seek
further appellate review),” Taylor v. Lee, 186 F.3d 557, 561 (4th
Cir. 1999) (construing 28 U.S.C. § 2244(d)(2)).
Petitioner’s
federal limitations period thus began to run again no later than
October 20, 2014, when (as documented in Section I) the North
Carolina Court of Appeals denied his certiorari petition.15
15
In fact, the federal limitations period likely resumed running on or
about July 11, 2014, when (as documented in Section I) 30 days passed following
the Superior Court’s denial of Petitioner’s third MAR without him filing a
certiorari petition in the North Carolina Court of Appeals. See generally Artuz
v. Bennett, 531 U.S. 4, 8 (2000) (holding that petitioners must make state
collateral filings according to applicable state laws and rules to satisfy
“properly filed” requirement for tolling federal habeas statute of limitations);
Royster v. Perry, No. 1:15CV342, 2016 WL375076, at *2-3 (M.D.N.C. Jan. 29, 2016)
(unpublished) (discussing interaction between Section 2244(d)(2) and N.C.R. App.
P. 21(e)). Furthermore, no tolling resulted from Petitioner’s effort to obtain
review by the North Carolina Supreme Court after the North Carolina Court of
(continued...)
-17-
The remaining 311 days of that period passed as of August 27,
2015.16
As documented in Section I, Petitioner submitted his
Amended Petition no earlier than December 7, 2015.
The Amended
Petition thus qualifies as timely only to the extent that its
contents “relate back” to his Petition (which he timely filed);17
however, under
the
circumstances
presented,
the
relation-back
doctrine only saves “a claim or defense that arose out of the
conduct, transaction, or occurrence set out — or attempted to be
set out — in the original pleading,” Fed. R. Civ. P. 15(c)(1)(B);
see also Fed. R. Civ. P. 15(c)(1)(A) & (C) (allowing relation-back
where statutory authority so dictates and where amendment simply
involves
non-prejudicial
change
of
party
to
correct
mistaken
15
(...continued)
Appeals denied certiorari (which effort (as documented in Section I) the North
Carolina Supreme Court rejected on December 18, 2014, as memorialized via written
order dated December 22, 2014).
See Gray v. Lewis, No. 1:11CV91, 2011 WL
4022787, at *2 (M.D.N.C. Sept. 9, 2011) (unpublished) (citing cases),
recommendation adopted, slip op. (M.D.N.C. Nov. 4, 2011); see also N.C. Gen.
Stat. §§ 7A-28(a) (“Decisions of the Court of Appeals upon review of [MARs
alleging federal constitutional violations] are final and not subject to further
review in the Supreme Court by appeal, motion, certification, writ, or
otherwise.”), 15A-1422(f) (same); N.C.R. App. P. 21(e) (providing that certiorari
petitions seeking review of MARs in non-capital cases “shall be filed with the
Court of Appeals and the Supreme Court will not entertain petitions for
certiorari or petitions for further discretionary review in these cases”). Nor,
unlike in the direct appeal context, could Petitioner seek to exclude from the
limitations calculations the 90 days after the conclusion of the state collateral
proceedings, during which he theoretically could have sought certiorari review
by the United States Supreme Court. See Crawley v. Catoe, 257 F.3d 395, 397–401
(4th Cir. 2001).
16
Even with tolling for the additional 63 days between the denial of
certiorari by the North Carolina Court of Appeals on October 20, 2014, and the
written order from the North Carolina Supreme Court Clerk on December 22, 2014,
the federal limitations period would have lapsed on October 29, 2015.
17
Petitioner did not advance any basis by which the doctrine of equitable
tolling might save the claims in the Amended Petition, despite the notice on the
form he used to submit the Amended Petition that, “[i]f [his] judgment of
conviction became final over one year ago, [he] must explain why the one-year
statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar [his
Amended P]etition” (Docket Entry 8, ¶ 18). (See id.)
-18-
identity, respectively).
In the context of a habeas petition,
“conduct, transaction, or occurrence” does not mean a petitioner’s
entire trial or sentencing.
(2005).
Mayle v. Felix, 545 U.S. 644, 664
Instead, only claims linked as to “‘time and type’” with
timely claims “relate back.”
Pittman, 209 F.3d at 318 (quoting
United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)).
Grounds Three and Four of the Amended Petition (which advance
claims that the State (A) presented insufficient evidence to
support Petitioner’s attempted larceny conviction and (B) failed to
test or to introduce at trial certain evidence) involve entirely
different events than the ones underlying the Petition’s claims
(which allege ineffective assistance of counsel in relation to (C)
an admission in the defense opening statement, (D) the amendment of
the attempted larceny indictment, and (E) Petitioner’s absence from
part of the trial). (Compare Docket Entry 8, ¶ 12(Ground Three)(a)
& (Ground Four)(a), and Docket Entry 9 at 7-9, with Docket Entry 1,
¶ 12(Ground One)(a), (Ground Two)(a), (Ground Three)(a), & (Ground
Four)(a)).
This lack of a linkage as to “time and type” from the
claims in the Petition renders Grounds Three and Four of the
Amended Petition untimely (and therefore futile).
Similarly, although the Petition raises ineffective assistance
claims and the lone, new aspect of Ground One of the Amended
Petition also asserts a claim for ineffective assistance (i.e.,
that trial counsel “failed to make [a] motion to dismiss for
insufficient evidence on behalf of [Petitioner] at the close of
[the] State’s case and at the close of all evidence” (Docket Entry
-19-
8, ¶ 12(Ground One)(a))), “it is not sufficient that the new claim
simply has the same form as the original claims . . . .
Thus, ‘a
petitioner does not satisfy the Rule 15 ‘relation back’ standard
merely by raising some type of ineffective assistance in the
original petition, and then amending the petition to assert another
ineffective assistance claim based upon an entirely distinct type
of attorney misfeasance.’”
3:09CV831,
2011
WL
Ingram v. Buckingham Corr. Ctr., No.
836826,
at
*7
(E.D.
Va.
Mar.
4,
2011)
(unpublished) (quoting United States v. Ciampi, 419 F.3d 20, 24
(1st Cir. 2005)), appeal dismissed, 468 F. App’x 236 (4th Cir.
2012); accord United States v. Gonzalez, 592 F.3d 675, 679-80 (5th
Cir. 2009); Lowery, 2012 WL 2395192, at *4.
The Court therefore
should deem untimely (and futile) the non-redundant part of Ground
One of the Amended Petition, because it attacks a materially
different form of ineffective assistance than does the Petition.
Finally, Ground Two of the Amended Petition alleges that the
Superior
Court
violated
the
Grand
Jury
Clause
of
the
Fifth
Amendment of the United States Constitution by altering the heading
of the attempted larceny indictment to match its body. (See Docket
Entry 8, ¶ 12(Ground Two)(a); Docket Entry 9 at 6-7.)
Assuming for
present purposes that such a claim relates back to the ineffective
assistance claim in Grounds One and Two of the Petition (which
addressed the failure of Petitioner’s trial counsel to object to
that indictment amendment (see Docket Entry 1, ¶ 12(Ground One)(a)
& (Ground Two)(a))), Ground Two of the Amended Petition nonetheless
fails as a matter of law, because “the Fifth Amendment requirement
-20-
of indictment by grand jury does not apply to the states,” Hartman
v. Lee, 283 F.3d 190, 195 n.4 (4th Cir. 2002).
In sum, the futility of the Amended Petition, arising from its
redundancy,
untimeliness,
and
want
of
merit,
requires
its
rejection.
III.
CONCLUSION
Petitioner has not established entitlement to habeas relief.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 4) be granted, that the Petition
(Docket Entry 1) be denied, that the Amended Petition (Docket Entry
8) be dismissed (as untimely) in part and denied (as redundant and
meritless) in part, and that judgment be entered against Petitioner
in this action without issuance of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 8, 2016
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