SHORE v. NEELY
Filing
11
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 6/22/2016. It is therefore RECOMMENDED that Respondent's Motion to Dismiss (Docket Entry 6 ) be granted, that the Petition (Docket Entry 1 ) be dismissed, and that Judgment be entered dismissing this action without issuance of a certificate of appealability. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RICKEY GRAY SHORE,
Petitioner,
v.
FRANK L. PERRY,
Respondent.
)
)
)
)
)
)
)
)
)
1:15CV653
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a
writ
of
habeas
corpus
pursuant
to
28
U.S.C.
§
2254
(the
“Petition”). (Docket Entry 1.) Respondent has moved for dismissal
on grounds of untimeliness.
Entry 7 (Supporting Brief).)
(See Docket Entry 6; see also Docket
For the reasons that follow, the
Court should grant Respondent’s Motion to Dismiss and should
dismiss the Petition as time-barred.
I.
On
September
1,
1992,
Background
Petitioner
pleaded
guilty
in
the
Superior Court of Yadkin County to three counts of first degree sex
offense and three counts of indecent liberties with a child,
whereupon (pursuant to a plea agreement) he received consecutive
prison sentences of life and ten years in case numbers 92CRS810,
92CRS811, and 92CRS812.
16-19;
Docket
Entry
(Docket Entry 1, ¶¶ 1-6; see also id. at
7-2
at
2-7.)1
The
court
ordered
those
1
The Petition consists of 15 pages of a standard form, followed by 43
pages of materials from Petitioner’s underlying state criminal case(s). (See
Docket Entry 1.) This Memorandum Opinion cites to the standard form portion of
(continued...)
sentences to “begin at the expiration of the sentence imposed [on]
. . . 4-8-92[ in case number] 91 CRS 16453[ in] Guilford County
Superior Court.”
(Id. at 16; see also id., ¶¶ 1, 2 (acknowledging
conviction in “Guilford County Superior Court” in case number
“91CRS16453” on “4-8-92”); Docket Entry 7-2 at 8-9 (“Judgment and
Commitment” dated April 8, 1992, from Guilford County Superior
Court, documenting Petitioner’s receipt of 15-year prison sentence
in case numbers 91CRS16453, 91CRS16454, and 91CRS16455, for “Crime
against Nature,” “Indecent Liberties,” and “2nd Degree Sexual
Offense”).)
Subsequently
(on
January
19,
1995),
Petitioner
received a consecutive 40-year prison sentence, upon his no contest
pleas in Yadkin County Superior Court to three counts of second
degree sex offense and one count of indecent liberties with a child
in case numbers 94CRS2601, 94CRS2602, 94CRS2603, and 94CRS2604.
(Docket Entry 7-2 at 12-15; see also Docket Entry 1, ¶ 3 (reporting
40-year consecutive sentence, but without reference to case numbers
94CRS2601, 94CRS2602, 94CRS2603, and 94CRS2604).)
1
(...continued)
the Petition by paragraph and to the remainder of the Petition by the page number
in the footer appended at the time of docketing in the CM/ECF system. Respondent
also attached to his Supporting Brief documents from Petitioner’s state criminal
proceedings. (See Docket Entry 7-2.) This Memorandum Opinion cites to those
items by the page number in their CM/ECF footers. The judgment submitted by
Petitioner from the above-referenced cases lists two counts of indecent
liberties, but the related plea agreement he tendered identifies three such
counts. (Compare Docket Entry 1 at 16, with id. at 18.) That judgment also
mentions only the life sentence (see id. at 16), although the plea agreement
contemplates two sentences (see id. at 19), as the Petition alleges (see id.,
¶ 5). Respondent’s submissions (the authenticity of which Petitioner did not
contest upon responding (see Docket Entries 9, 10)) resolve any discrepancy, as
they include not only the same judgment Petitioner filed with his Petition
(compare Docket Entry 1 at 16-17, with Docket Entry 7-2 at 2-3), but also an
additional judgment covering the third count of indecent liberties, which
memorializes the ten-year consecutive prison sentence (Docket Entry 7-2 at 4-5).
-2-
Petitioner did not directly appeal those convictions.
(See
Docket Entry 1 at 25 (alleging in Motion for Appropriate Relief as
to
case
numbers
91CRS16453,
92CRS810,
92CRS811,
92CRS812,
94CRS2601, and 94CRS2604, dated as signed on December 12, 2014,
that
Petitioner
suffered
unconstitutional
denial
of
right
to
appeal); see also Docket Entry 9 at 3 (“[Petitioner] requested [his
counsel] to
file
notice of
appeal
[but his]
attorney[s]
did
not[.]”); Docket Entry 10 at 13 (“Petitioner [sic] court appointed
attorney’s [sic] . . . told Petitioner that he could not appeal a
guilty plea when Petitioner requested that he file an appeal.”), 14
(“Petitioner contends that his trial counsel’s failure to perfect
his appeal, or to advise him how to perfect an appeal pro se
deprived him of his constitutional rights . . . .”).)2
Nor did
Petitioner make any state (or federal) collateral filings until
1998.
(See Docket Entry 1, ¶¶ 9, 11, 14.)
Petitioner instituted this action via his Petition dated as
signed on August 3, 2015.
(Id., Decl. ¶.)
Respondent moved to
dismiss the Petition as untimely (Docket Entry 6) and Petitioner
responded (Docket Entries 9, 10).
II.
Grounds for Relief
The Petition presents four grounds for relief.
(Docket Entry
1, ¶ 12.) The first alleges unspecified violations of Petitioner’s
rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to
2
Petitioner’s filings do not consistently follow standard capitalization
conventions, but (for ease of reading) this Memorandum Opinion utilizes such
conventions when quoting his filings. In the Petition, Petitioner checked the
“Yes” box as to whether he filed a direct appeal (Docket Entry 1, ¶ 8), but, in
response to further questions about any such appeal, he identified only state
collateral filings (see id., ¶ 9).
-3-
the United States Constitution.
(Id., ¶ 12(Ground One)(a); see
also Docket Entry 10 at 2-5 (describing “Ground One” as raising
Miranda violation).)
The second asserts that Petitioner suffered
a “violation of Miranda rights” because he “was coerced into
signing a waiver of . . . his Miranda rights based on the selfserving advice that he received from the detectives that he did not
need and [sic] attorney[.]” (Docket Entry 1, ¶ 12(Ground Two)(a).)
The third states that Petitioner’s counsel provided ineffective
assistance by “not present[ing] any evidence in Petitioner [sic]
favor
to
the
court
that
the
victim
.
.
.
never
had
[an]
examin[ation] by a doctor [which] would have shown that [the
victim] was never rape[d] . . . .”
(Id., ¶ 12(Ground Three)(a).)
The fourth contends the state court improperly failed to afford
Petitioner a competency hearing.
III.
Respondent
requests
(Id., ¶ 12(Ground Four)(a).)3
Discussion
dismissal
of
this
action
because
Petitioner filed the Petition outside the one-year limitation
3
One of Petitioner’s filings responding to Respondent’s Motion to Dismiss
contains subheadings for “Ground Five,” “Ground Six,” and “Ground Seven,” but the
related discussion (with the exception of an allegation of ineffective assistance
regarding appeal) does not identify any collateral claims; instead, Petitioner
therein argues, as to Grounds One through Four, that (A) he qualifies for federal
habeas relief even under the limited review standard established by 28 U.S.C.
§ 2254(d)(2), (B) the Teague bar does not preclude federal habeas relief, (C)
“extraordinary circumstances” warrant relaxation of the statute of limitations,
and (D) the Court should deny Respondent’s Motion to Dismiss and should allow
Petitioner’s responsive filings to exceed the page limitation. (See Docket Entry
10 at 11-17.) Petitioner’s other responsive filing also purports to broaden his
ineffective assistance claim beyond the allegations of Ground Three. (See Docket
Entry 9 at 3 (complaining that Petitioner’s counsel “failed to do any pretrial
investigation before [Petitioner] accepted the plea,” “fail[ed] to do any
presentence investigation [resulting in] prejudic[e] because no potential
mitigating evidence [was] presented even though such evidence existed,” “failed
to hiier [sic] an investigator to investigate [the victim],” and failed to carry
out Petitioner’s request “to file notice of appeal”).)
-4-
period imposed by the Antiterrorism and Effective Death Penalty Act
of 1996, P.L. 104-132 (“AEDPA”), codified in pertinent part at 28
U.S.C. § 2244(d)(1).
(See Docket Entry 6.)4
In order to assess
Respondent’s statute of limitation argument, the Court first must
determine when Petitioner’s one-year period to file his § 2254
petition commenced.
In this regard, the United States Court of
Appeals for the Fourth Circuit has explained that:
Under § 2244(d)(1)(A)-(D), the one-year limitation period
begins to run from the latest of several potential
starting dates:
(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.
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008) (emphasis
added).
For purposes of subparagraph (A), the one-year federal habeas
limitations period begins to run on “the date on which the judgment
became final by the conclusion of direct review or the expiration
4
The AEDPA amendments apply to all petitions filed under § 2254 after
April 24, 1996. Lindh v. Murphy, 521 U.S. 320 (1997).
-5-
of the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A).
Because (as shown in the Background section) Petitioner did not
pursue a direct appeal of his state convictions, the last of those
convictions (entered on January 19, 1995, as the Background section
documents) became final on or about February 2, 1995 (i.e., 14 days
after the entry of judgment).
See N.C. R. App. P., Rule 4(a)(2)
(providing that appeal rights expire 14 days after the trial court
enters judgment).
In other words, Petitioner’s underlying state
convictions all became final before the time limits in AEDPA took
effect on April 24, 1996; as a result, he had one year from AEDPA’s
effective date (i.e., until April 24, 1997) to seek relief via
Section 2254.
2000).
Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir.
Petitioner, however, did not file the instant Petition
until more than 18 years after that date, rendering the claims
therein untimely under subsection (A).5
As noted above, in some situations, the limitations period
under AEDPA starts running at times other than the one provided by
subsection (A), i.e.:
the date of the removal of an unlawful
state-created impediment to filing, 28 U.S.C. § 2244(d)(1)(B); the
5
Petitioner did file a motion for appropriate relief (“MAR”) in state
court in 1998 (and again in 2014). (See Docket Entry 1, ¶¶ 9, 11; see also id.,
¶ 18 (responding to directive requiring explanation for “why the one-year statute
of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition”
as follows: “the time during which a properly filed application for state postconviction or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of limitation under this
subsection”).) The pendency of proper state collateral filings does toll AEDPA’s
filing deadline. See Taylor v. Lee, 186 F.3d 551, 561 (4th Cir. 1999). However,
once the time to institute a federal habeas action has expired, new collateral
actions in state court do not restart the AEDPA limitations period. See Minter
v. Beck, 230 F.3d 663, 665 (4th Cir. 2000). Petitioner’s filing of an MAR in
1998 (or later) thus does not affect the timeliness of his Petition.
-6-
date of recognition by the United States Supreme Court of a
constitutional right made retroactively applicable on collateral
review, 28 U.S.C. § 2244(d)(1)(C); and/or the date on which the
discovery of the factual predicate for a claim first reasonably
could have occurred, 28 U.S.C. § 2244(d)(1)(D).
responses
to
Respondent’s
Motion
to
Dismiss
Petitioner’s
arguably
request
application of the delayed accrual provisions that concern statecreated impediment(s) (subparagraph (B)) and newly-recognized,
retroactive Supreme Court rulings (subparagraph (C)).
Specifically, in an apparent attempt to invoke subparagraph
(B),
Petitioner
“contend[ing]
has
that
opposed
the
dismissal
[prison]
of
his
administration
claims
wouldn’t
by
allow
inmates to make legal copies for their material [and] that [such
conduct by state officials] hindered him from filing before his
statute of limitation ran out.”
(Docket Entry 10 at 15; see also
id. (noting, consistent with language of subparagraph (B), that
tolling of limitations period occurs “when [the petitioner] has
been unable
state”).)
to
assert
claims
because
of
wrongful
conduct
of
Such “conclusory allegation[s] do[] not suffice to show
delayed accrual under section 2244(d)(1)(B).”
Kiesz v. Spearman,
No. CV 13-5674-PA(E), 2014 WL 462864, at *3 (C.D. Cal. Feb. 4,
2014) (unpublished); see also United States v. Coates, No. 2:09CR8,
2014 WL 460934, at *2 (W.D. Va. Feb. 5, 2014) (unpublished) (“[The
petitioner] asserts that he could not file a timely § 2255 motion
because prison authorities denied him access to pen, paper, and
legal papers . . . .
These vague and conclusory allegations are
-7-
insufficient
to
demonstrate
that
any
impediment
created
by
governmental action in violation of the Constitution prevented
[him] from preparing an earlier § 2255 motion, and, therefore, I
cannot find that his motion is timely under § 2255(f)(2) [which
mirrors § 2244(d)(1)(B)].” (internal ellipsis and quotation marks
omitted)); Broussard v. Warden, S. La. Corr. Ctr., No. 2:11CV1757,
2012 WL 3067599, at *4 (W.D. La. July 9, 2012) (unpublished) (“[The
p]etitioner implies that he is entitled to the benefits of 28
U.S.C. § 2244(d)(1)(B) . . . [because, inter alia, prison] staff
block and delay incoming and outgoing mail . . . .
[These]
conclusory allegations do not establish the existence of a State
created impediment to filing.”), recommendation adopted, 2012 WL
3067596 (W.D. La. July 27, 2012) (unpublished).
As to subparagraph (C), Petitioner has cited the Supreme
Court’s decisions in Lafler v. Cooper, ___ U.S. ___, 132 S. Ct.
1376 (2012), and Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399
(2012).
(See Docket Entry 9 at 2.)
“These cases fail to warrant
belated commencement under 28 U.S.C. § 2244(d)(1)(C) for newly
recognized constitutional rights because Lafler and Frye ‘simply
discussed the constitutional right to effective assistance of
counsel in the context of plea bargaining that defendants have
enjoyed for decades.’”
Tory v. Methena, No. 3:12CV905, 2013 WL
5739790, at *3 (E.D. Va. Oct. 22, 2013) (unpublished) (quoting
Harris v. Smith, No. 1:13–cv–182–FDW, 2013 WL 3329050, at *1
(W.D.N.C. July 2, 2013) (unpublished), appeal dismissed, 548 F.
App’x 79 (4th Cir. 2013), which in turn cites In re Perez, 682 F.3d
-8-
930 (11th Cir. 2012), and In re King, 697 F.3d 1189 (5th Cir.
2012)), appeal dismissed, 553 F. App’x 305 (4th Cir.), cert.
denied, ___ U.S. ___, 134 S. Ct. 1564 (2014); accord, e.g., Diaz v.
Biter, No. CV 13–7745–SP, 2014 WL 3109849, at *4 (C.D. Cal. July 8,
2014) (unpublished), certificate of appealability denied, slip op.
No. 14-56534 (9th Cir. May 7, 2015); see also In re Graham, 714
F.3d 1181,
consider
1182
the
(10th
question
Cir.
has
2013)
held
(“[E]very
that
Frye
establish a new rule of constitutional law.”).
circuit
and
court to
Lafler
do
not
In any event, even
if Lafler and Frye (issued on March 21, 2012) re-started the AEDPA
limitations period as to any claim(s) in the instant Petition,
Petitioner did not thereafter file any state collateral action (let
alone the instant Petition) within a year of those rulings.
(See
Docket Entry 1, ¶ 11(a)(3) (giving filing date of December 18,
2014, for only state collateral filing since litigation of initial
Motion for Appropriate Relief in 1998 (see id., ¶ 9)); see also
id., Decl. ¶ (dating Petition as signed on August 3, 2015).)6
6
Nor does subparagraph (D)’s delayed accrual provision render any of
Petitioner’s claims timely. The factual predicates for the claims in Grounds One
through Four of the instant Petition all arise from matters that occurred (and,
through the exercise of due diligence, Petitioner could have discerned) no later
than the day the state court entered judgment. Specifically, by the time he
pleaded guilty, Petitioner knew or reasonably should have known about (A) his
waiver of Miranda rights and any related statements made to him by officers
(Grounds One and Two), (B) his attorneys’ failure to present evidence as to the
lack of a medical examination of the victim (Ground Three), and (C) the absence
of a competency examination (Ground Four). Accordingly, subparagraph (D) does
not yield a later commencement date for those claims than does subparagraph (A).
Likewise, even if the Court treated the additional allegations of ineffective
assistance referenced in Petitioner’s responses to Respondent’s Motion to Dismiss
(described in Footnote 3) as properly-presented claims, the commencement date for
those claims under subparagraph (D) would remain (at best) coterminous with the
date under subparagraph (A), as to all such claims other than appellate
ineffectiveness. In that regard, by exercising due diligence, Petitioner could
have known, at the time the state court entered judgment, what pretrial and/or
(continued...)
-9-
In sum, Petitioner’s claims run afoul of AEDPA’s time-bar.
Petitioner nonetheless would have the Court permit this action to
proceed because “there were extraordinary circumstances, such as
events which were both beyond his control and unavoidable . . .
[that] prevented him . . . from exercising his rights.”
Entry 10 at 13.)
The Supreme Court has deemed equitable tolling
available in the federal habeas context.
U.S. 631 (2010).
(Docket
Holland v. Florida, 560
More particularly, a court may relax AEDPA’s
statute of limitations when a petitioner “shows ‘(1) that he has
been
pursuing
his
rights
diligently,
and
(2)
that
some
extraordinary circumstance stood in his way’ and prevented timely
filing.”
Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)).
Petitioner, however, has not made such a showing.
To the contrary, in arguing for equitable tolling, Petitioner
has focused on the failure of his attorneys to pursue (or to advise
him about) a direct appeal.
(See Docket Entry 10 at 13-15.)
That
line of argument entitles Petitioner to no relief from AEDPA’s
statute of limitations because the absence of a direct appeal did
6
(...continued)
presentence investigation his attorneys had done and whether they had hired an
investigator. As to ineffective assistance on appeal, Petitioner knew what (if
any) consultation he received about an appeal at the time of entry of judgment
and in the 14 days that followed (during which he had to file any appeal).
Similarly, through the exercise of due diligence, Petitioner could have learned
that his attorneys had not perfected an appeal of his convictions sometime during
the year and three-plus months that passed between the last entry of judgment on
January 19, 1995, and AEDPA’s effective date of April 24, 1996. See Escamilla
v. United States, Nos. 1:10CR175-2, 1:13CV509, 2015 WL 248562, at *2 (M.D.N.C.
Jan. 20, 2015) (unpublished) (discussing cases recognizing that failure of
petitioners to take steps to inquire into status (or lack) of appeal for lengthy
period of time terminates delay in commencement of limitations period under
provision of 28 U.S.C. § 2255(f) that parallels subparagraph (D)). Accordingly,
even on that appellate ineffective assistance of counsel claim, under
subparagraph (D), Petitioner’s one-year limitations period for filing a federal
habeas action would have lapsed no later than April 24, 1997.
-10-
not affect his ability to file a habeas action in this Court (or,
at least, to institute state collateral proceedings that would have
tolled
the
federal
filing
deadline)
before
April
24,
1997,
particularly given that, through the exercise of due diligence, he
could have discovered the lack of a direct appeal sometime between
the entry of judgment on the last of his convictions (on January
19, 1995) and AEDPA’s effective date (of April 24, 1996).
See,
e.g., Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010)
(“Counsel’s failure to perfect an appeal simply meant that the
petitioner had one year from the expiration of his time to file a
notice of appeal in which to initiate a federal habeas action — it
did not prevent him from filing the petition.” (internal brackets
omitted)); Schmitz v. Taylor, No. 5:14-3626, 2014 WL 6810384, at *3
(D.S.C. Dec.
2,
2014)
(unpublished)
(“[A]llegedly
ineffective
assistance of counsel based on the failure to file an appeal does
not constitute an ‘extraordinary circumstance’ that would justify
equitable tolling when the failure to appeal had been public
knowledge and could have been discovered through the exercise of
reasonable diligence.”); Geary v. Warden, N.H. State Prison, No.
07CV116PS,
2008
WL
2782830,
at
*1
(D.N.H.
July
8,
2008)
(unpublished) (“[The petitioner] also claims that he is entitled to
equitable
tolling
because
his
attorney
provided
ineffective
assistance in failing to appeal his conviction in state court.
This argument is also without merit.
Counsel’s alleged failure to
pursue an appeal in state court did not prevent [the petitioner]
from filing a timely habeas corpus petition in this court.”).
-11-
IV. Conclusion
The
statute
of
limitations
established
by
AEDPA
bars
Petitioner’s claims.
IT
IS
THEREFORE
RECOMMENDED
that
Respondent’s
Motion
to
Dismiss (Docket Entry 6) be granted, that the Petition (Docket
Entry 1) be dismissed, 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
June 22, 2016
-12-
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