GRIFFIN v. SOLOMON

Filing 13

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 8/2/2016, RECOMMENDED that Respondent's Motion to Dismiss or, in the Alternative, Motion for More Definite Statement (Docket Entry 3 ) be denied in part and denied as moot in part. FURTHER RECOMMENDED that Respondent be ordered to answer and/or otherwise respond on the merits to Grounds One through Five of the Petition (Docket Entry 1 ), as amended by Petitioner's Amendment Response to State's Answer (Docket Entry 7 ). (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GREGORY A. GRIFFIN,
Petitioner,
v.
GEORGE SOLOMON,
Respondent.

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1:15CV694

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 or, alternatively, for clarification of
Petitioner’s claims.

(Docket Entry 3; see also Docket Entry 4

(Supporting Brief).) For the reasons that follow, the Court should
deny Respondent’s Motion to Dismiss and should deny as moot his
alternative Motion for More Definite Statement.
I.

Background

On May 9, 2013, a jury in the Superior Court of Cabarrus
County found Petitioner guilty of the offenses of breaking and
entering and of possessing burglary tools (both as an habitual
felon), whereupon the Superior Court imposed two, concurrent prison
sentences of 146 to 185 months.

(See Docket Entry 1, ¶¶ 1-6;

Docket Entry 4-5 at 64, 70, 74-77.)1

Petitioner appealed to the

1
The Petition consists of 10 pages of a standard form, followed by 46
pages of materials from Petitioner’s underlying state criminal case(s) (see
Docket Entry 1), with additional such documents appended as Exhibit A (see Docket
(continued...)

North Carolina Court of Appeals and received appointed appellate
counsel.

(See Docket Entry 4-5 at 83-85.)

Through that counsel,

Petitioner filed a brief with the North Carolina Court of Appeals
raising three issues, the first two of which concerned alleged,
non-constitutional errors (i.e., admission of irrelevant evidence
and admission of improper opinion evidence) (see Docket Entry 4-6
at 16-37) and the third of which raised an alleged, federal and
state

constitutional

error

(i.e.,

admission

of

unreliable

identification evidence from or tainted by an inherently suggestive
“show-up”) (see id. at 38-43). The North Carolina Court of Appeals
affirmed. North Carolina v. Griffin, No. COA13-1093, 233 N.C. App.
239 (table), 2014 WL 1384371 (Apr. 1, 2014) (unpublished).2
Petitioner (acting pro se) then forwarded to the Supreme Court
of North Carolina a “Notice of Appeal” (dated as signed on April 8,
2014, and stamped “Filed” by the Clerk of the Supreme Court of
North Carolina on April 14, 2014), stating that Petitioner gave

1
(...continued)
Entry 1-1) and Exhibit B (see Docket Entry 1-2). This Memorandum Opinion cites
to the standard form portion of the Petition by paragraph and to the remainder
of the Petition, as well as Exhibits A and B, by the page number in the footer
appended to those materials at the time of their docketing in the CM/ECF system.
Respondent also attached to his Supporting Brief documents from Petitioner’s
state criminal proceedings (see Docket Entries 4-2 to 4-21), the authenticity of
which Petitioner has not contested (see Docket Entries 6, 7). This Memorandum
Opinion cites to those items by the page number in their CM/ECF footers. Handwritten portions of Petitioner’s filings frequently feature all capital letters,
but (for ease of reading) this Memorandum Opinion employs standard capitalization
conventions when quoting such filings.

2
Prior to the above-referenced ruling by the North Carolina Court of
Appeals, Petitioner submitted numerous pro se motions, all of which the North
Carolina Court of Appeals rejected. (See Docket Entry 4-8 at 3-4.) Petitioner
then filed with the Supreme Court of North Carolina a “Petition for Discretionary
Review under N.C.G.S. 7A-31” as to various of those motions. (Docket Entry 4-9
at 4-9.) The Supreme Court of North Carolina denied that petition on April 10,
2014. North Carolina v. Griffin, 367 N.C. 498, 757 S.E.2d 899 (2014).

-2-

“notice of appeal to the Supreme Court of North Carolina from the
decision of the North Carolina Court of Appeals that was filed
April 1st 2014 Matter COA13-1093.”

(Docket Entry 4-14 at 9; see

also Docket Entry 4-16 at 2 (setting forth on “Supreme Court of
North Carolina Docket Sheet [for] State v. Gregory Austin Griffin”
a “Docket Date” of April 14, 2014, but a “Date Filed” for “MOTION
FOR NOTICE OF APPEAL” of April 16, 2014).)

The Supreme Court of

North Carolina dismissed that Notice of Appeal on June 11, 2014.
North Carolina v. Griffin, 367 N.C. 506, 759 S.E.2d 101 (2014).3
On May 29, 2015, the Superior Court of Cabarrus County stamped
as “FILED” Petitioner’s Motion for Appropriate Relief (“MAR”).
(Docket Entry 4-17 at 2.)
on June 2, 2015.

That court denied and dismissed that MAR

(Docket Entry 4-18 at 2-3.)

On August 6, 2015,

the North Carolina Court of Appeals denied Petitioner’s request for
certiorari review of the denial/dismissal of his MAR.
Entry 4-21 at 2.)

(Docket

Petitioner subsequently instituted this action

via his Petition dated as signed and tendered to prison officials
for mailing on August 11, 2015.

(Docket Entry 1, Decl. ¶.)

Respondent thereafter filed the instant Motion to Dismiss or, in
the Alternative, Motion for More Definite Statement (Docket Entry
3) and Petitioner responded (Docket Entries 6, 7).

3
Consistent with the filing date and document description listed on the
Supreme Court of North Carolina Docket Sheet, the above-cited Order refers to
“the motion filed on the 16th of April 2014 by [Petitioner] for Notice of
Appeal.” Griffin, 367 N.C. at 506, 759 S.E.2d at 101. Petitioner, however,
clearly styled the document at issue not as a motion, but as a “Notice of
Appeal.” (Docket Entry 4-14 at 9.)

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II.

Grounds for Relief

The Petition presents four grounds for relief.
1, ¶ 12.)

The first alleges that Petitioner’s “conviction was

obtained in violation of due process of law.”
One)(a).)

(Docket Entry

(Id., ¶ 12(Ground

The second asserts that Petitioner suffered a violation

of his “due process equal protection right.”

(Id., ¶ 12(Ground

Two).) The third states that Petitioner’s conviction arose from an
“unconstitutional search and seizure.”

(Id., ¶ 12(Ground Three).)

The fourth contends that the “State with[held] favorable evidence.”
(Id., ¶ 12(Ground Four).)
In the portion of the Petition calling for “[s]upporting
facts” for each ground for relief, Petitioner simply referred the
Court to his attached MAR.
Two)(a),

(Ground

(See id., ¶ 12(Ground One)(a), (Ground

Three)(a),

&

(Ground

Four)(a).)

However,

Petitioner’s Amendment Response to State’s Answer includes detailed
factual allegations as to the four grounds set forth in the
Petition.

(See Docket Entry 7 at 2-7.)

That filing also adds a

new “Ground V: Violation of Petitioners [sic] . . . right to a
[sic]

impartial

jury”

(id.

allegations (see id. at 7-8).4

at

7),

with

supporting

factual

Petitioner’s Amendment Response to

4
The Court stamped Petitioner’s Amendment Response to State’s Answer as
filed on October 19, 2015 (see Docket Entry 7 at 1), less than 21 days after
Respondent filed his instant Motion to Dismiss (on October 2, 2015) (see Docket
Entry 3). As a result, Petitioner properly added Ground Five as a matter of
course. See Fed. R. Civ. P. 15(a)(1); see also 28 U.S.C. § 2242 (“[A habeas
petition] may be amended or supplemented as provided in the rules of procedure
applicable to civil actions.”). However, to the extent Petitioner’s Amendment
Response to State’s Answer “request[s] that the Court allow in addition . . .
that the issues and grounds for relief in the M.A.R. on p. 17-18 under (c)X and
p. 31-38 noted under (6) and (6)(B) that’s attached to/with [the Petition] be
included and given consideration as issues raised and presented” (Docket Entry
(continued...)

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State’s Answer thus moots Respondent’s instant, alternative Motion
for More Definite Statement.
III.

Discussion

Respondent’s instant Motion to Dismiss argues that Petitioner
filed the Petition outside the one-year limitation period codified
at 28 U.S.C. § 2244(d)(1).

(See Docket Entry 3 at 1.)

In order to

assess Respondent’s statute of limitation argument, the Court first
must determine when Petitioner’s one-year period to file his
Petition commenced.

In that 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

4
(...continued)
7 at 8-9), the Court should deem such matters inadequately pleaded, see, e.g.,
Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990) (holding that Rule 2(c)
of the Rules Governing Section 2254 Cases bars a petitioner from simply
incorporating allegations made in related state proceedings). Finally, in his
Amendment Response to State’s Answer, Petitioner has requested “that counsel be
assigned to assist [him] and an evidentiary hearing.” (Docket Entry 7 at 9.)
Appointment of counsel in habeas cases requires a showing of exceptional
circumstances, see Chapman v. Herron, No. 1:11CV194, 2012 WL 3151007, at *1–2
(M.D.N.C. Aug. 2, 2012) (unpublished), a standard Petitioner has not even
attempted to meet (see Docket Entry 7 at 9). Nor does the record yet warrant the
setting of an evidentiary hearing; rather, if the Court denies the instant Motion
to Dismiss, Respondent should have an opportunity to answer and/or otherwise
respond on the merits, see Chapman, 2012 WL 3151007, at *2, and the Court
thereafter can decide whether to hold an evidentiary hearing, see Rule 8(a),
Rules Governing Sect. 2254 Cases.

-5-

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).
Under subparagraph (A), Petitioner’s convictions became final
on or about September 9, 2014 (i.e., 90 days after the Supreme
Court of North Carolina dismissed his Notice of Appeal, Griffin,
367 N.C. at 506, 759 S.E.2d at 101).

See Clay v. United States,

537 U.S. 522, 527 (2003) (holding that “[f]inality attaches when
th[e United States Supreme] 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”); see also Sup. Ct. R. 13.1 (allowing 90 days to seek
certiorari after ruling by highest state appellate court). Because
(as documented in Section I) Petitioner filed his Petition in this
Court less than a year later, i.e., on August 11, 2014 (when he
submitted the Petition to prison officials for mailing, see Rule
3(d) of

the

Rules Governing Sect. 2254 Cases),

his

Petition

qualifies as timely under Section 2244(d)(1).
Respondent has disputed the foregoing calculations by arguing
that, following the affirmance of Petitioner’s convictions by the
North Carolina Court of Appeals on April 1, 2014, “Petitioner
failed to keep his direct appeal alive, and his case became final
on 6 May 2014 when his time to [file a Petition for Discretionary

-6-

Review or a proper Notice of Appeal] expired.”

(Docket Entry 4 at

6; see also id. at 5 n.1 (“The [North Carolina] Court of Appeals’
mandate issues twenty days after the filing of an opinion, and
thereafter, a party has fifteen days to seek review in the North
Carolina Supreme Court.” (internal parenthetical omitted) (citing
Saguilar v. Harkleroad, 348 F. Supp. 2d 595, 598-601 (M.D.N.C.
2004), appeal dismissed, 145 F. App’x 444 (4th Cir. 2005))), 10-11
(“[Petitioner’s] case, therefore, became final on 6 May 2014 –
thirty-five days after the [North Carolina] Court of Appeals’
decision. Thereafter, more than one year elapsed before Petitioner
filed his MAR [in] state court on 29 May 2015.

Consequently, by

the time he filed his MAR, his statute of limitations under
[Section 2244(d)(1)] had already expired, and ‘once the one-year
statute of limitation had fully expired, no subsequent [state
collateral]

motion

or

petition

could

revive

it.’”

(internal

brackets and ellipsis omitted) (quoting Hairston v. Beck, 345 F.
Supp. 2d 535, 538 (M.D.N.C. 2004))).) Specifically, Respondent has
reasoned that, following the denial of relief on direct appeal by
the North Carolina Court of Appeals, “Petitioner had thirty-five
days – until 6 May 2014 – to seek review in the North Carolina
Supreme Court by filing (a) a petition for discretionary review,
(b) a notice of appeal based upon a dissenting opinion, and/or (c)
a

notice

question.

of

appeal

based

upon

a

substantial

constitutional

Petitioner, however, did none of these.”

(Id. at 5

(internal citations, footnote, parenthetical abbreviation, and
quotation marks omitted).)

-7-

Respondent correctly has described the three courses by which
a direct appeal generally may proceed from the North Carolina Court
of Appeals to the Supreme Court of North Carolina.

See N.C. Gen.

Stat. §§ 7A-30 (“Except as provided in G.S. 7A-28 [concerning
MARs], an appeal lies of right to the Supreme Court from any
decision of the Court of Appeals rendered in a case:
directly

involves

a

substantial

question

arising

(1) Which
under

the

Constitution of the United States or of this State, or (2) In which
there is a dissent.”), 7A-31(a) (“[T]he Supreme Court may, in its
discretion, on motion of any party to the cause or on its own
motion, certify the cause for review by the Supreme Court, . . .
after it has been determined by the Court of Appeals.”).
Respondent

properly

has

observed

that,

upon

the

Further,

denial

of

Petitioner’s direct appeal by the North Carolina Court of Appeals:
1) Petitioner did not file a Petition for Discretionary Review
(despite clearly knowing how to do so (see Docket Entry 4-9 at 49)), but instead explicitly filed a “Notice of Appeal” (see Docket
Entry 4-14 at 9-10); and
2) that “Notice of Appeal” filed by Petitioner could not have
continued the direct appeal process via the statutory provision
authorizing appeal of right to the Supreme Court of North Carolina
based upon lack of unanimity at the North Carolina Court of
Appeals, because no member of the three-judge panel who heard his
direct appeal dissented, see Griffin, 2014 WL 1384371, at *1
(identifying “STEPHENS, Judge” as author), *10 (“Judges BRYANT and
DILLON concur.”).

-8-

The undersigned Magistrate Judge, however, cannot agree that,
under the particular facts of this case, the Notice of Appeal filed
by Petitioner failed, as a matter of law, to keep alive his direct
appeal via the alternative statutory provision permitting appeal
“of right to the Supreme Court [of North Carolina] from any
decision of the [North Carolina] Court of Appeals rendered in a
case . . . [w]hich directly involves a substantial question arising
under the Constitution of the United States or of th[e] State [of
North Carolina],” N.C. Gen. Stat. § 7A-30.

In that regard,

Respondent mistakenly has suggested that the Notice of Appeal at
issue, beyond lacking express language “alleg[ing] the involvement
of any constitutional question, let alone a substantial one”
(Docket

Entry

4

at

9),

also

could

not

reasonably

have

been

understood to impliedly assert that such a question existed,
because “no constitutional question was presented to the North
Carolina Court of Appeals” (id. at 9 n.7 (italics in original)).
As noted in Section I, contrary to that position, Petitioner’s
brief

before

the

North

Carolina

Court

of

Appeals

explicitly

presented for review the question of whether the admission of
certain identification testimony violated his federal and state
constitutional due process rights.

(See Docket Entry 4-6 at 38-39

(“III. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING THE
IDENTIFICATION OF [PETITIONER] BY TWO BI-LO EMPLOYEES BECAUSE THE
IDENTIFICATION RESULTED FROM AN INHERENTLY SUGGESTIVE SHOW-UP.
Standard of review:

This court reviews evidentiary errors or

constitutional errors to which the defendant did not object at

-9-

trial for plain error . . . .

Because the show-up was inherently

suggestive, both witness’s out-of-court identification and in-court
identification should have been suppressed. Even in the absence of
an objection or motion to suppress by trial counsel, the court
should have intervened to suppress this testimony. . . .

The use

of unreliable identification testimony offends due process.

U.S.

Const., Amend. XIV; N.C. Const., Art. I, §§ 19, 23, 24. If a
pre-trial identification procedure was so unfairly suggestive as to
create a substantial likelihood of misidentification, the evidence
of the identification must be suppressed, as well as any in-court
identification testimony derived therefrom. Manson v. Braithwaite,
432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188 (1972); State v.
Pigott, 320 N.C. 96, 357 S.E.2d 631 (1987).” (bolding added) (some
internal parallel citations omitted)).)

Indeed, the State’s brief

to the North Carolina Court of Appeals clearly manifested its
understanding that Petitioner had raised a constitutional issue on
direct appeal.

(See Docket Entry 4-7 at 31 (“Now [Petitioner]

claims plain error and challenges the show-up identification on
constitutional grounds claiming that the show-up procedure used in
this case was inherently suggestive.” (bolding added)).)5

5
Moreover, the State devoted more than nine pages to that constitutional
question (out of 29 pages of argument in the brief) (see Docket Entry 4-7 at 1140), indicating that the State did not view the matter as trivial. Nor did the
North Carolina Court of Appeals give the issue short-shrift; instead, despite
noting that the plain error standard applied, Griffin, 2014 WL 1384371, at *8,
the decision bypassed reliance on the unique elements of that test and
effectively reviewed this constitutional question de novo, “conclud[ing] that the
show-up procedure here was unduly suggestive,” id., but that, “just as in [North
Carolina v.] Rawls[, 207 N.C. App. 415, 700 S.E.2d 112 (2010)], ‘. . . there was
no substantial likelihood of irreparable misidentification,’” Griffin, 2014 WL
1384371, at *9 (quoting Rawls, 207 N.C. App. at 424, 700 S.E.2d at 118).

-10-

Given the foregoing context, the Supreme Court of North
Carolina thus readily could have concluded that the Notice of
Appeal

at

issue

claimed

entitlement

to

review

of

the

sole

constitutional question presented to the North Carolina Court of
Appeals, despite the absence of express allegations in that Notice
of Appeal about the nature of the constitutional question that
Petitioner wanted reviewed, as required by a procedural rule, see
N.C. App. R. 14(b)(2) (“In an appeal which is asserted by the
appellant to involve a substantial constitutional question, the
notice of appeal . . . shall state the issue or issues which are
the basis of the constitutional claim and which are to be presented
to the Supreme Court for review; shall specify the articles and
sections of the Constitution asserted to be involved; shall state
with particularity how appellant’s rights thereunder have been
violated; and shall affirmatively state that the constitutional
issue was timely raised (in the trial tribunal if it could have
been, in the Court of Appeals if not) and either not determined or
determined erroneously.”).

The Supreme Court of North Carolina

ultimately dismissed the Notice of Appeal, but without explaining
whether that dismissal stemmed from Petitioner’s non-compliance
with the technical requirements of North Carolina Appellate Rule
14(b)(2) or occurred because the Supreme Court of North Carolina
deemed his constitutional challenge to the show-up-related and
show-up-tainted

identification

evidence

insubstantial.

Griffin, 367 N.C. at 506, 759 S.E.2d at 101.

-11-

See

As the latter scenario remains a distinct possibility, the
Court should not accept Respondent’s contention that the Notice of
Appeal at issue failed to extend the life of Petitioner’s direct
appeal because “jurisdiction never vested in the North Carolina
Supreme Court” (Docket Entry 4 at 9).

(See id. at 8 n.5 (“If

Petitioner had alleged a substantial constitutional question and
the court still dismissed the appeal, then he arguably would have
kept his direct review alive since the court at least would have
had to make a substantive decision as [to] the existence of a
substantial constitutional question.” (italics in original)).)6
IV. Conclusion
Respondent

has

not

demonstrated

that

the

statute

of

limitations in Section 2244(d)(1) bars Petitioner’s claims and
Petitioner’s Amendment Response to State’s Answer provides factual
allegations that render moot Respondent’s alternative request for
clarification of Petitioner’s claims.

6
At points, Respondent’s Supporting Brief appears to intimate that North
Carolina Appellate Rule 14(b)(2) establishes “jurisdictional” requirements (such
that the Supreme Court of North Carolina never could have reached the
substantiality question in regards to Petitioner’s Notice of Appeal). (See,
e.g., Docket Entry 4 at 10 (“[T]here are practical considerations [that weigh
against] permitting defective and jurisdictionally deficient appeals to delay
finality and the accrual of the statute of limitations.”).) Independent research
has revealed no North Carolina cases taking that view. Additionally, the United
States Supreme Court “ha[s] tried in recent cases to bring some discipline to the
use of the term ‘jurisdiction.’” Sebelius v. Auburn Reg’l Med. Ctr., ___ U.S.
___, ___, 133 S. Ct. 817, 824 (2013) (some internal quotation marks omitted).
“Among the types of rules that should not be described as jurisdictional are what
[the United States Supreme Court] ha[s] called ‘claims-processing rules.’ These
are rules that seek to promote the orderly progress of litigation by requiring
that the parties take certain procedural steps at certain specified times.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011).
North
Carolina Appellate Rule 14(b)(2) appears to meet that description of a
(presumptively, at least) non-jurisdictional, claims-processing rule.

-12-

IT

IS

THEREFORE

RECOMMENDED

that

Respondent’s

Motion

to

Dismiss or, in the Alternative, Motion for More Definite Statement
(Docket Entry 3) be denied in part and denied as moot in part.
IT IS FURTHER RECOMMENDED that Respondent be ordered to answer
and/or otherwise respond on the merits to Grounds One through Five
of the Petition (Docket Entry 1), as amended by Petitioner’s
Amendment Response to State’s Answer (Docket Entry 7).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 2, 2016

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