ROYSTER v. PERRY

Filing 9

MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 01/29/2016; that Respondent's Motion to Dismiss (Docket Entry 5 ) be granted, that the Petition (Docket Entry 2 ) be dismissed as untimely, and that judgment be entered dismissing this action without issuance of a certificate of appealability. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KEAVON LEVAR ROYSTER,
Petitioner,
v.
FRANK L. PERRY,
Respondent.

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1:15CV342

MEMORANDUM OPINION AND RECOMMENDATION
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus via 28 U.S.C. § 2254.

(Docket Entry 2.)

For the reasons that follow, the Court should deny the Petition as
time-barred.
I.

Background

On January 22, 2008, Petitioner pleaded guilty in the Superior
Court of Person County to two counts of assault with a deadly
weapon with intent to kill inflicting serious injury and one count
of robbery with a dangerous weapon in case numbers 07CRS1362,
07CRS50713, and 07CRS51690, and (as provided in his plea agreement)
received a consolidated prison sentence of 121 to 155 months.
(Docket Entry 2, ¶¶ 1, 2, 4-6; Docket Entry 6, Exs. 1, 2.)
not appeal.

He did

(Docket Entry 2, ¶ 8.)

In a Motion for Appropriate Relief (“MAR”), dated as signed on
January 14, 2009, and stamped-filed in the Superior Court on
January 16, 2009, Petitioner sought collateral relief.
¶ 11(a)(1)-(5); Docket Entry 6, Ex. 5.)

By order dated March 9,

2009, the Superior Court denied that MAR.
¶ 11(a)(7); Docket Entry 6, Ex. 6.)

(Id.,

(Docket Entry 2,

The Petition alleges that

Petitioner presented the same issues he had raised in his foregoing
MAR in a subsequent petition for writ of certiorari to the North
Carolina Court of Appeals (compare Docket Entry 2, ¶ 11(a)(5), with
id., ¶ 11(b)(5));1 however, Petitioner did not file that certiorari
petition until April 2, 2015 (id., ¶ 11(b)(3); see also id.,
¶ 12(Ground One)(d), (Ground Two)(d), (Ground Three(d), & (Ground
Four)(d)

(describing

certiorari

petition

denied

by

the

North

Carolina Court of Appeals on April 17, 2015, as “appeal” of
Superior Court’s denial of MAR on March 9, 2009); Docket Entry 6,
Ex. 9 (reflecting signature date on certiorari petition of March
30, 2015)).2

The North Carolina Court of Appeals denied that

certiorari petition by order dated April 17, 2015.

(Docket Entry

2, ¶ 11(b)(7) & (8); Docket Entry 6, Ex. 11.)
Petitioner then instituted this action via his Petition dated
as signed on April 21, 2015.

(Docket Entry 2.)

Respondent has

1
In fact, Petitioner’s MAR asserted (at most) only the first two of the
four claims ascribed to it in the Petition (i.e., improper refusal to remove
appointed counsel and entry of an unknowing guilty plea). (Compare Docket Entry
6, Ex. 5, with Docket Entry 2, ¶ 11(a)(5).) The other two claims attributed to
the MAR by the Petition (i.e., ineffective assistance of counsel and failure to
apply new sentencing provisions) actually appear in a “Motion for Reconsideration
of the Order Denying Defendant’s Motion for Appropriate Relief” that Petitioner
filed in the Superior Court on or about February 17, 2015. (See Docket Entry 6,
Ex. 7.)

2
Prior to filing that certiorari petition, by motion dated as signed on
February 17, 2015, Petitioner asked the Superior Court to reconsider the denial
of his MAR (which denial, as noted above, occurred on March 9, 2009). (See
Docket Entry 6, Ex. 7; see also Docket Entry 2, ¶ 12(Ground One)(e), (Ground
Two)(e), (Ground Three)(e), & (Ground Four)(e) (acknowledging filing on February
17, 2015, of “Motion for Reconsideration of the Order denying the MAR”).) The
Superior Court denied that reconsideration motion by order dated March 12, 2015.
(Docket Entry 6, Ex. 8; see also Docket Entry 2, ¶ 12(Ground One)(e), (Ground
Two)(e), (Ground Three)(e), & (Ground Four)(e) (reporting that Superior Court
denied reconsideration motion on March 12, 2015).)
Petitioner’s certiorari
petition purported to seek review of the Superior Court’s denials of both the MAR
and the reconsideration motion. (See Docket Entry 6, Ex. 9.)

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moved to dismiss the Petition as untimely (Docket Entry 5) and
Petitioner has responded (Docket Entry 8).
II.

Grounds for Relief

The Petition presents four grounds for relief.
2, ¶ 12.)

(Docket Entry

The first alleges that the Superior Court violated

Petitioner’s rights under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution by refusing to allow
Petitioner to discharge his appointed counsel and to retain counsel
of his choosing. (Id., ¶ 12(Ground One).)

The second asserts that

Due Process Clause violations occurred (A) because of the unknowing
nature of Petitioner’s guilty plea (i.e., he understood he would
receive a sentence at the bottom of the mitigated range, but he
actually received a sentence in the presumptive range) and (B)
because of the grossly disproportionate nature of the sentence
imposed.

(Id.,

¶

12(Ground

Petitioner’s

counsel

contravention

of

the

Two).)

provided
Sixth

The

third

ineffective

Amendment

to

states

that

assistance

the

United

in

States

Constitution, in that (A) his counsel labored under a conflict of
interest and (B) his counsel failed to advocate for a sentence at
the bottom of the mitigated range, as well as to lodge objections
(i) to Petitioner’s sentence, (ii) regarding his arrest, (iii)
under Brady, and (iv) concerning exculpatory evidence.
¶ 12(Ground Three).)
State

to

sentencing

afford
laws

The fourth contends that the failure of the

Petitioner
violates

Fourteenth Amendment.

(Id.,

the

the

benefit

Equal

of

changes

Protection

(Id., ¶ 12(Ground Four).)
-3-

to

Clause

state
of

the

III.

Discussion

A one-year statute of limitations applies to federal habeas
claims.

28 U.S.C. § 2244(d)(1).

By statute:

[t]he limitation period shall run 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), Petitioner’s convictions became
final on or about February 5, 2008 (i.e., 14 days after the
Superior Court entered judgment, when his deadline to file notice
of appeal passed, see N.C.R. App. P. 4(a)(2)).

See Gonzalez v.

Thaler, ___ U.S. ___, 132 S. Ct. 641, 653–54 (2012).3

The federal

limitations period then ran until at least January 14, 2009, when
(as documented in Section I) Petitioner dated his MAR, at which
time only 22 days of that one-year period remained.

The filing of

3
Because Petitioner pleaded guilty and received a sentence in the
presumptive range (consistent with his plea agreement), he likely possessed no
right to appeal. See State v. Smith, 193 N.C. App. 739, 741–42, 668 S .E.2d 612,
613–14 (2008) (enumerating limited appeal rights of defendants who plead guilty).

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Petitioner’s MAR tolled the deadline for any federal habeas claims
for “the time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending.”

28 U.S.C. § 2244(d)(2)

(emphasis added). The Court thus must decide when Petitioner’s MAR
no

longer

remained

“pending,”

within

the

meaning

of

Section

2244(d)(2), given that (as shown in Section I) the Superior Court
denied that MAR on March 9, 2009, but Petitioner did not seek
reconsideration

or

review

of

that

denial

until

2015

(i.e.,

approximately six years later).
Now-retired United States Magistrate Judge Russell A. Eliason
provided a persuasive answer to this question in McConnell v. Beck,
427 F. Supp. 2d 578 (M.D.N.C. 2006).

In that case, the state trial

court denied the petitioner’s MAR on September 22, 1995, and he did
not seek review of the denial.

Id. at 580.

The petitioner later

filed a federal habeas petition in January 2005, which the State
challenged as time-barred. Id. Magistrate Judge Eliason began his
analysis

by

determinate

noting

that

time-limit

for

North

Carolina

filing

a

law

petition

establishes

no

for

of

a

writ

certiorari with the North Carolina Court of Appeals; rather, the
applicable state procedural rule requires the filing of such
petitions without “unreasonable delay[],” N.C.R. App. P. 21(e).
See McConnell, 427 F. Supp. 2d at 580.

Next, to determine when

the federal limitations period resumed (following the trial-courtlevel denial of the petitioner’s MAR), Magistrate Judge Eliason

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looked to the Supreme Court’s decision in Evans v. Chavis, 546 U.S.
189 (2006).
In

McConnell, 427 F. Supp. 2d at 581.

that

collateral

case,

review

the

Supreme

process,

Court

which

addressed

bears

California’s

similarities

to

North

Carolina’s collateral review process, i.e., California also has
adopted a reasonableness standard (rather than a specific deadline)
for

applications

context.

for

appellate

review

Evans, 546 U.S. at 191–92.

in

the

post-conviction

The petitioner in Evans

waited over three years after the trial-court-level denial of his
state post-conviction petition to seek appellate review, with at
least six months of that delay deemed unjustified or unexplained.
Id. at 192, 195.

The Supreme Court noted that most states have

appeal periods ranging from 30 to 60 days, concluded that six
months of unexplained delay exceeded what California would consider
reasonable, and rejected the notion that “an unexplained delay of
this magnitude could fall within the scope of the federal statutory
word ‘pending.’”

Id. at 201.

In light of Evans, Magistrate Judge Eliason stated:
North Carolina has not defined what constitutes
unreasonable delay for purposes of N.C.R. App. P. 21(e).
The time for filing appeals in civil cases is thirty days
and fourteen days for criminal cases. N.C.R. App. P.
3(c) & 4(a).
The largest amount of time to seek
appellate review is sixty days, and it is reserved for
post-conviction appellate review of death penalty cases.
N.C.R. App. P. 21(f). Therefore, it is unlikely that
North Carolina would interpret N.C.R. App. P. 21(e) to
extend beyond thirty days, except perhaps for brief,
limited periods in very unusual circumstances, which do
not arise in this case.

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McConnell, 427 F. Supp. 2d at 582; see also Taylor v. Lee, 186 F.3d
557, 561 (4th Cir. 1999) (observing that state collateral filings
generally toll the federal habeas deadline for “the entire period
of state post-conviction 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)” (emphasis added)).
Based on that sound reasoning, the limitations period in this
case remained tolled during the time permitted for Petitioner to
seek appellate review of the Superior Court’s denial of his MAR,
i.e., 30 days.

Giving Petitioner the benefit of those 30 days of

tolling, the federal habeas limitations period began to run again
on April 8, 2009, and expired on April 30, 2009, upon the passing
of the remaining 22 days of that one-year period.

Accordingly,

under Subparagraph (A) of Section 2244(d)(1), Petitioner’s filing
of the Petition, on or about April 21, 2015, occurred nearly six
years too late.

Moreover, neither Petitioner’s filing in the

Superior Court (on or about February 17, 2015) of a “Motion for
Reconsideration of the Order Denying [His MAR]” (Docket Entry 6,
Ex. 7), nor his filing in the North Carolina Court of Appeals (no
earlier than March 30, 2015) of a certiorari petition altered that
fact.

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

(holding that state filings made after the federal limitations
period expired do not restart or revive that one-year period).
Petitioner has not developed any argument that the delayed
accrual options provided by Subparagraphs (B), (C), or (D) of
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Section 2244(d)(1) apply to any of the claims in his Petition.
(See Docket Entry 1, ¶ 18; Docket Entry 8.)

Respondent, however,

has acknowledged that Subparagraph (D) would appear to provide a
later accrual date than Subparagraph (A) as to the sentencingrelated claim(s) in Ground Four of the Petition. (See Docket Entry
6 at 7-8.)

Nonetheless, Respondent correctly has noted that the

state sentencing amendments identified by Petitioner took effect on
December 1, 2009, and December 1, 2011, respectively.

(See id.)

Even treating December 1, 2011, as the accrual date for the
claim(s) in Ground Four, Petitioner’s one-year federal habeas
limitations period for such claim(s) expired on December 1, 2012
(because he had no state collateral proceedings pending during that
time-frame and thus received no tolling credit).

In sum, contrary

to the assertion in the Petition that it “[wa]s fil[ed] within the
one year statute of limitation as indicated in the tolling for
collateral attacks” (Docket Entry 2, ¶ 18), despite granting
Petitioner the benefit of all available statutory tolling and the
latest possible accrual date(s), his Petition remains untimely.
Petitioner’s Response to Respondent’s Motion to Dismiss does
not contest any of the foregoing analysis or calculations; instead,
it asserts that “the United States Supreme Court [has] drastically
modif[ied] and create[d] exemption[s] for the one year statute[] of
limitations law created in 1996 (AEDPA).”

(Docket Entry 8 at 2.)

In that regard, the Response appears to rely on Martinez v. Ryan,
___ U.S. ___, 132 S. Ct. 1309 (2012), Trevino v. Thaler, ___ U.S.
___, 133 S. Ct. 1911 (2013), and McQuiggin v. Perkins, ___ U.S.
-8-

___, 133 S. Ct. 2151 (2013).

(See Docket Entry 8 at 2-5.)

Those

decisions do not allow Petitioner to escape the time bar.
In Trevino and Martinez, the Supreme Court held that where
petitioners,

under

state

law

or

practice,

cannot

raise

an

ineffective assistance of counsel on direct appeal, the procedural
default rule will not prevent a federal court from adjudicating
such a claim if petitioners lacked effective counsel in the first
state collateral proceeding.

See Trevino, ___ U.S. at ___, 133 S.

Ct. at 1921; Martinez, ___ U.S. at ___, 132 S. Ct. at 1320.
Neither case even addressed statute of limitations issues.

See

Trevino, ___ U.S. at ___, 133 S. Ct. at 1911; Martinez, ___ U.S. at
___, 132 S. Ct. at 1309.

Trevino and Martinez thus provide no

assistance to Petitioner.

See Arthur v. Thomas, 739 F.3d 611,

630–31 (11th Cir.) (holding that Martinez and Trevino do not affect
federal habeas statute of limitations), cert. denied, ___ U.S. ___,
135 S. Ct. 106 (2014); Wilson v. Perry, No. 1:14CV576, 2014 WL
4685405, at *1 (M.D.N.C. Sept. 19, 2014) (Eagles, J.) (“Martinez
and Trevino each addressed whether a procedural bar, rather than a
time bar, should apply to an ineffective assistance of counsel
claim from a state habeas proceeding.

Thus, Martinez and Trevino

are inapplicable to the determination of untimeliness under the
AEDPA one-year statute of limitations.”), appeal dismissed, 588 F.
App’x 216 (4th Cir. 2014), cert. denied sub nom., Wilson v. Joyner,
___ U.S. ___, 135 S. Ct. 2808 (2015).
Conversely, McQuiggin does recognize a potential exception to
the one-year, federal habeas limitations period, but only where the
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petitioner makes a showing of actual innocence. See McQuiggin,
___U.S. at ___, 133 S. Ct. at 1928.

Moreover, the Supreme Court

has described the circumstances sufficient to satisfy the actual
innocence standard as “rare,” and has held that the petitioner must
demonstrate that no reasonable juror could find guilt beyond a
reasonable doubt. Id. Here, Petitioner has offered no evidence of
his innocence.

(See Docket Entry 8.)

As a result, he has failed

to show that “‘it is more likely than not that no reasonable juror
would have convicted [him],’” McQuiggin, ___ U.S. at ___, 133 S.
Ct. at 1933 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)); see
also Wilson, 2014 WL 4685405, at *2 (“[The petitioner’s] conclusory
claims now of actual innocence are insufficient to be credible,
even at this preliminary stage.”).4
IV.

Conclusion

The Petition is time-barred.
IT

IS

THEREFORE

RECOMMENDED

that

Respondent’s

Motion

Dismiss (Docket Entry 5) be granted, that the Petition

to

(Docket

Entry 2) be dismissed as untimely, and that judgment be entered
dismissing

this

action

without

issuance

of

a

certificate

of

appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 29, 2016

4
To the extent Petitioner’s Response requests equitable tolling of the
statute of limitations based on his status as a pro se prisoner who lacks legal
training and/or access to a law library (see Docket Entry 8 at 5), the Court
should deny his request, see United States v. Sosa, 364 F.3d 507, 512 (4th Cir.
2004); Burgess v. Herron, No. 1:11CV420, 2011 WL 5289769, at *2 (M.D.N.C. Nov.
2, 2011) (unpublished), recommendation adopted, slip op. (M.D.N.C. Dec. 1, 2011).

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