GARDNER v. HOOKS
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 5/26/2017; that Respondent's Motion for Summary Judgment (Docket Entry 5 ) be granted, that the Petition (Docket Entry 2 ) be denied, and that a judgment be entered dismissing this action, without issuance of a certificate of appealability. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DERRICK GARDNER,
Petitioner,
v.
ERIC A. HOOKS,
Respondent.
)
)
)
)
)
)
)
)
)
1:17CV83
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.
Entry 2.)
(Docket
On January 16, 2014, in the Superior Court of Rowan
County, a jury found Petitioner guilty of one count of failure to
register as a sex offender and one count of violation of sex
offender residential restrictions in case 13 CRS 53450.
See State
v. Gardner, 237 N.C. App. 496, 497, 769 S.E.2d 196, 197 (2014).
Petitioner subsequently admitted his habitual felon status in case
13 CRS 2785.
Id.
The trial court consolidated those convictions
and sentenced Petitioner to one Class C habitual felon sentence in
the presumptive range of 88 to 118 months’ imprisonment.
Petitioner appealed (see Docket Entry 2, ¶¶ 8, 9), and, on
December 2, 2014, the North Carolina Court of Appeals concluded, by
published opinion, that Petitioner “received a trial free from
error,”
Gardner,
237
N.C.
App.
at
497,
769
S.E.2d
at
197.
Petitioner did not thereafter petition the North Carolina Supreme
Court for discretionary review.1
Petitioner, however, did file a pro se motion for appropriate
relief (“MAR”) in the Rowan County Superior Court on October 6,
2015 (see Docket Entry 2, ¶ 9(g); Docket Entry 6-4 at 2 (order
denying MAR giving date of MAR)),2 which that court summarily
denied on October 13, 2015 (Docket Entry 6-4 at 3).3
Petitioner
subsequently filed a pro se certiorari petition with the North
Carolina Court of Appeals on December 8, 2015 (see Docket Entry 2,
¶ 11(a)(1)-(5); Docket Entry 6-5 at 2 (order denying certiorari
petition giving date of petition)),4 which that court denied on
December 21, 2015 (Docket Entry 6-5 at 2; see also Docket Entry 2,
¶ 11(a)(7), (8)).5
Petitioner subsequently signed his instant Petition, under
penalty of perjury, and dated it for mailing on January 18, 2017
1
Although Petitioner checked the box for “Yes” in regards to whether he
sought “further review” on direct appeal after the North Carolina Court of
Appeals denied relief (Docket Entry 2, ¶ 9(g)), his additional responses
regarding the nature of any such pursuit of further review on direct appeal
confirm that Petitioner actually next commenced state collateral proceedings
rather than petitioning the North Carolina Supreme Court for discretionary review
(see id., ¶ 9(g)(1)).
2
The record does not contain a copy of Petitioner’s MAR.
3
Throughout this document, pin citations refer to the page numbers that
appear in the footer appended to documents upon their docketing in the CM/ECF
system.
4
Petitioner mistakenly identified the North Carolina Supreme Court, rather
than the North Carolina Court of Appeals, as the court in which he filed his
certiorari petition. (See Docket Entry 2, ¶ 11(a)(1).)
5
The record does not contain a copy of Petitioner’s certiorari petition.
2
(see Docket Entry 2 at 10), and the Clerk of Court stamped and
filed the Petition on January 27, 2017 (see id. at 1).6
Respondent
untimeliness
moved
(Docket
to
dismiss
Entries
5,
the
6),
Petition
Petitioner
on
grounds
of
responded
in
opposition (Docket Entry 8), and Respondent replied (Docket Entry
9).
Following Respondent’s reply, Petitioner filed two letters
addressed to the Court providing further argument and evidence in
support of his position that he filed the instant Petition in a
timely manner.
(Docket Entries 10, 11.)7
For the reasons that
follow, the Court should grant Respondent’s instant Motion, because
Petitioner
submitted
his
Petition
outside
of
the
one-year
limitations period.
Petitioner’s Claims
The Petition raises two grounds for relief: (1) the “State
[d]id in fact [e]rr in [a]dmitting GPS [d]ata and [r]eports”
(Docket Entry 2 at 3); and (2) the “State violated [Petitioner’s]
Co[n]stitutional rights as Award [sic] of the State” (id. at 4).
6
Under Rule 3(d) of the Rules Governing Section 2254 Cases in United
States District Courts, the Court deems the instant Petition filed on January 18,
2017, the date Petitioner signed the Petition (under penalty of perjury) as
submitted to prison authorities.
7
Petitioner did not obtain leave of Court to file these additional
documents. (See Docket Entries dated Apr. 6, 2017, to the present.) However,
as explained in the subsequent discussion of the Petition’s timeliness,
consideration of the substance of those unauthorized documents does not alter the
conclusion that the statute of limitations bars the instant Petition.
3
Discussion
Respondent moves to dismiss the Petition as filed outside of
the one-year limitations period, see 28 U.S.C. § 2244(d)(1).
(See
Docket Entry 6 at 3-9.) In order to assess Respondent’s statute of
limitations argument, the undersigned must first determine when
Petitioner’s one-year period to file his Petition commenced.
The
United
has
States
Court
of
Appeals
for
the
Fourth
Circuit
explained:
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).
must determine timeliness on claim-by-claim basis.
DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).
4
The Court
See Pace v.
Neither Petitioner nor
Respondent contend that subparagraphs (B), (C), or (D) apply in
this situation.
(See Docket Entries 2, 6, 8, 9, 10, 11.)
Thus,
the undersigned must decide when, under subparagraph (A), the
statute of limitations commenced.
Under subparagraph (A), Petitioner’s conviction became final
on January 6, 2015 – the final day on which he could have filed
notice of appeal or a petition for discretionary review in the
North Carolina Supreme Court, regarding the North Carolina Court of
Appeal’s decision on December 2, 2014.
See N.C. R. App. P. 14(a)
(requiring notice of appeal within 15 days after Court of Appeals
issues
mandate),
15(b)
(requiring
filing
of
petition
for
discretionary review within 15 days after Court of Appeals issues
mandate), 32(b) (stating that mandate shall issue 20 days after
filing of opinion unless court orders otherwise); see also Gonzalez
v. Thaler, 565 U.S. 134, 149-50 (2012) (holding that a petitioner’s
case becomes
final
when
the
time for
pursuing
direct review
expires); Saguilar v. Harkleroad, 348 F. Supp. 2d 595 (M.D.N.C.
2004) (holding that the petitioner’s conviction finalized 35 days
after Court of Appeals issued opinion where the petitioner did not
file petition for discretionary review), appeal dismissed, 145 F.
App’x 444 (4th Cir. 2005).
Petitioner’s one-year period then ran, unimpeded, for 273 days
from January 6, 2015, until October 6, 2015, the date the Superior
Court of Rowan County stamped as filed Petitioner’s MAR (see Docket
5
Entry 6-4 at 2).
The limitation period remained tolled until
December 21, 2015, when the Court of Appeals denied Petitioner’s
certiorari petition seeking review of the MAR’s denial (see Docket
Entry 6-5 at 2), and then ran, unimpeded, for 92 more days until
its expiration on March 22, 2016.
Petitioner did not submit the
instant Petition to prison authorities until January 18, 2017 (see
Docket Entry 2 at 10), 302 days out of time.
In Petitioner’s response in opposition to Respondent’s motion
to dismiss, Petitioner sets forth a timeline of events involving
his attempts to file a petition for a writ of habeas corpus in this
Court beginning on November 29, 2016.
(See Docket Entry 8; see
also Docket Entries 10, 11 (providing additional arguments and
evidence).)
Petitioner apparently contends that such a timeline
demonstrates that he timely filed the instant Petition because he
acted less than one year after the Court of Appeals denied his
certiorari petition on December 21, 2015.
(See Docket Entry 11 at
1 (arguing “that as of Dec[ember] 21st 2016 my [petition for a writ
of habeas corpus] would have been appropriate, but as it was
submitted the 17th of Nov[ember] 2016[,] [i]t was not late but [two
weeks] early”); see also Docket Entry 10 at 1 (“This letter comes
to [the Court] with proof of my [petition for a writ of habeas
corpus]
which
[Petitioner]
sent
out
to
the
Courts
at
a[n]
applicable one year timely period.”); Docket Entry 2, ¶ 18 (“This
6
Petition was filed within one year of my [petition for a writ of]
certiorari[.]”).)
Petitioner’s contentions overlook the 273 days the limitations
period ran from January 6, 2015, the date Petitioner’s convictions
finalized on direct review, and October 6, 2015, the date the
Superior Court of Rowan County stamped as filed Petitioner’s MAR
(see Docket Entry 6-4 at 2).
Thus, even if Petitioner had properly
filed the instant Petition in this Court as early as November 29,
2016, the statute of limitations would still bar the Petition,
because the limitations period had expired over eight months
earlier on March 22, 2016.
A court can equitably toll the one-year limitations period.
See Holland v. Florida, 560 U.S. 631, 634 (2010).
Equitable
tolling requires that Petitioner demonstrate that (1) he has
diligently pursued his rights, and (2) extraordinary circumstances
prevented a timely filing. Id. at 649. Equitable tolling involves
a case-by-case analysis. Id. at 649-50. Here, however, Petitioner
did not advance any basis by which the doctrine of equitable
tolling might save the claims in the Petition, despite the notice
on the form he used to submit the 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] [P]etition.”
¶ 18.)
7
(Docket Entry 2,
In sum, the statute of limitations bars the instant Petition.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 5) be granted, that the Petition
(Docket
Entry
2)
be
denied,
and
that
a
judgment
be
entered
dismissing this action, without issuance of a certificate of
appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 26, 2017
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?