Maynor v. Stanley
Filing
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ORDER DISMISSING CASE. Court declines to issue a Certificate of Appealability. Signed by Chief Judge Frank D. Whitney on 12/19/16. (Pro se litigant served by US Mail.)(emw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-00128-FDW
DELTON MAYNOR,
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Petitioner,
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vs.
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DREW STANLEY,
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)
Respondent.
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____________________________________)
ORDER
THIS MATTER is before the Court upon Petitioner Delton Maynor’s pro se Petition for
Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner is a
prisoner of the State of North Carolina who is challenging his 2009 convictions for identity theft
and obstruction of justice and his sentence in a 2010 conviction.
After conducting an initial review of the Petition, attached exhibits (Doc. No. 1-1), and
memorandum (Doc. No. 2), the Court notified Petitioner that the Petition appeared to be timebarred and provided him an opportunity to explain why it should not be dismissed as such. (Doc.
No. 4.) Petitioner has filed a Response to the Court’s Order (Doc. No. 5), and this matter is ripe
for review.
I.
STANDARD OF REVIEW
The Court is guided by Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts, which directs district courts to dismiss habeas petitions when it plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief.
Rule 4, 28 U.S.C.A. foll. § 2254. In conducting its review under Rule 4, the court “has the
power to raise affirmative defenses sua sponte,” including a statute of limitations defense under
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28 U.S.C. § 2244(d). Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002). The court may dismiss
a petition as untimely under Rule 4, however, only if it is clear that the petition is untimely, and
the petitioner had notice of the statute of limitations and addressed the issue. Id. at 706–707.
III.
DISCUSSION
A. 2010 Judgment
On March 10, 2010, a Buncombe County jury convicted Petitioner of assault with a
deadly weapon inflicting serious injury (“AWDWISI”) (08CRS053977). State v. Maynor, 713
S.E.2d 250, 2011 WL 1938392, at *2 (N.C. Ct. App. 2011). Petitioner pled guilty to the
aggravating factor of committing the offense while on pretrial release for another charge. Id.
Consequently, the trial court sentenced defendant in the aggravated range to a minimum term of
74 months to a maximum term of 98 months in prison. Id. The court ordered that the sentence
begin upon the expiration of all sentences Petitioner already was obligated to serve. (AWDWISI
J. and Comm. 15, Pet’r’s Ex. 6, Doc. No. 1-1.)
On May 9, 2013, Petitioner filed a pro se Petition for Writ of Habeas Corpus, 28 U.S.C. §
2254, in federal district court, challenging his 2010 judgment. Pet., Maynor v. Perrett, 1:13-cv00130-RJC (W.D.N.C. filed May 9, 2013) (Doc. No. 1). On March 13, 2014, the Court denied
and dismissed the Petition on the merits and granted summary judgment to Respondent. Order,
1:13-cv-00130-RJC (Doc. No. 16).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996 provides for an
express limitation on a petitioner's ability to attack his criminal judgment in a subsequent
collateral proceeding. Pursuant to 28 U.S.C. § 2244(b)(3)(A), “[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant shall move in the
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appropriate court of appeals for an order authorizing the district court to consider the
application.”
Petitioner has not shown that he has obtained the necessary permission from the Fourth
Circuit to file a successive petition attacking his 2010 state judgment. Consequently, this Court
does not have jurisdiction to consider Petitioner’s current challenge to his 2010 judgment. See
Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that failure of petitioner to obtain
authorization to file a “second or successive” petition deprived the district court of jurisdiction to
consider the second or successive petition “in the first place”); United States v. Winestock, 340
F.3d 200, 205 (4th Cir. 2003) (“In the absence of pre-filing authorization, the district court lacks
jurisdiction to consider an application containing abusive or repetitive claims.”) (citation
omitted). Therefore, to the extent Petitioner challenges his 2010 judgment in the instant Petition,
his Petition must be dismissed as an unauthorized, successive petition. See § 2244(b)(3)(A).
B. 2009 Judgments
AEDPA provides a statute of limitation for § 2254 petitions by a person in custody
pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The petition must be filed within
one year of the “the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review[.]” § 2244(d)(1)(A).1 The limitation period
is tolled during the pendency of a properly filed state post-conviction action. § 2244(d)(2).
On May 26, 2009, Petitioner pled guilty in Buncombe County Superior Court to
obstruction of justice (N.C. Crim. Case No. 08CRS053963), identity theft (N.C. Crim. Case No.
08CRS053964), and a number of other charges. (Obstruction J. & Comm. 1, Pet’r’s Ex. 1;
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There are three alternative start dates for the statute of limitation, § 2244(d)(1)(B)-(D), none of which applies here.
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Identity Theft J. and Comm. 4, Pet’r’s Ex. 2, Doc. No. 1-1.) The court imposed a 29 to 35 month
active sentence for the identity theft conviction and a consecutive 20-24 month active sentence
for the obstruction of justice conviction. (Obstruction J. and Comm. 1, Pet’r’s Ex. 1; Identity
Theft J. and Comm. 4, Pet’r’s Ex. 2.)
To the extent Petitioner retained a right to a direct appeal subsequent to his guilty pleas,
he had 14 days after judgment was entered on May 26, 2009, to file the notice of appeal in the
North Carolina Court of Appeals. See N.C. R. App. P. 4(a)(2). Petitioner did not file a direct
appeal; therefore, his conviction in these two cases became final on or about June 9, 2009, when
the time for seeking direct review expired. See § 2244(d)(1)(A). The federal statute of
limitation then ran for 365 days until it fully expired on or about June 9, 2010. See id.
Beginning on December 7, 2011, Petitioner has filed at least three motions for
appropriate relief in Buncombe County Superior Court challenging his identity theft and/or
obstruction of justice convictions. (Resp. 3 ¶ 6, 4 ¶ 14, Doc. No. 5; Order Den. Dec. 7, 2015
MAR, Pet’r’s Ex. 11, Doc. No. 1-1.) All have been dismissed or denied, as have his numerous
petitions in the North Carolina appellate courts. None of these post-conviction filings in the state
courts, all of which were made after the federal statute of limitation had expired, restarted the
statute of limitation for Petitioner’s 2009 convictions. See Minter v. Beck, 230 F.3d 663, 665–66
(4th Cir. 2000). Therefore, absent equitable tolling, the instant § 2254 habeas Petition, filed on
May 6, 2016 (Doc. No. 1), is time-barred.
In his Response (Doc. No. 5) to the Court’s Order notifying him that his Petition
appeared to be untimely, Petitioner does not make an argument for equitable tolling of the statute
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of limitation. 2 Instead, he contends that the Court used the wrong date to start the statute of
limitation for his 2009 convictions.
While Petitioner was on pre-trial release in March 2008, awaiting prosecution for
obstruction of justice and identity theft in case numbers 08CRS053963 and 08CRS053964, he
committed the assault that led to his 2010 conviction for AWDWISI (08CRS53977).
(Indictment 14, Pet’r’s Ex. 6, Doc. No. 1-1.) Because he was indicted for the aggravating factor
of committing the assault while on pretrial release for another charge, presumably the obstruction
of justice and/or identify theft charge, and the court sentenced him in the aggravated range
because of it, Petitioner believes the statute of limitation did not be begin to run for his identity
theft and obstruction of justice convictions until it began to run for his assault conviction, on or
about January 4, 2012.3 Petitioner is incorrect.
North Carolina General Statute § 15A-1340.16(d)(12) provides that a trial court may
impose an aggravated sentence upon a finding by a jury, or admission by the defendant, that the
offense of conviction occurred while the defendant was on pretrial release on another charge.
North Carolina law does not require that a defendant ultimately be convicted of the predicate
offense for the aggravating factor to be valid. See State v. Harris, 775 S.E.2d 31, 34 (N.C. Ct.
2
Equitable tolling of the statute of limitation for a habeas petition is available only when the petitioner demonstrates
“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted).
Under Fourth Circuit precedent, equitable tolling is appropriate in those “rare instances where—due to
circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period
against the party and gross injustice would result.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc)
(quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)) (internal quotation marks omitted).
Petitioner’s direct appeal of his 2010 judgment was denied by the North Carolina Court of Appeals, as was his
petition for discretionary review in the North Carolina Supreme Court, State v. Maynor, 718 S.E.2d 148 (N.C. Dec.
6, 2011) (Mem). Petitioner’s judgment of conviction became final on or about January 4, 2012, when the time for
seeking discretionary review in the United States Supreme Court expired. See Clay v. United States, 537 U.S. 522,
525 (2003).
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App. 2015) (upholding constitutionality of pre-trial release aggravating factor “[a]lthough a
defendant on pretrial release in an unrelated felony case has not been convicted of the felony and
is presumed to be innocent of its commission,” and despite “[w]hether . . . one in this position is
in fact guilty”) (quoting State v. Webb, 308 S.E.2d 252, 258 (N.C. 1983) (internal quotation
marks omitted)). Thus, the validity of the aggravating factor relied upon by the sentencing court
in Petitioner’s 2010 case was not dependent upon whether Petitioner was convicted, or even
guilty, of the crimes for which he was on pre-trial release when he committed the assault.
Consequently, even if his 2009 convictions were to be vacated, such action would have no effect
on the legitimacy of his 2010 sentence.
In short, there are no statutory or equitable grounds warranting tolling of the statute of
limitation for Petitioner’s 2009 convictions. Therefore, his Petition, as it relates to his 2009
judgments shall be dismissed as untimely. See § 2244(d)(1)(A).
IT IS, THEREFORE, ORDERED that the Petition for Writ of Habeas Corpus (Doc.
No. 1) is DISMISSED for the reasons stated herein. FURTHERMORE, pursuant to Rule 11(a)
of the Rules Governing Section 2254 Cases, the Court declines to issue a certificate of
appealability as Petitioner has not made a substantial showing of a denial of a constitutional
right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to
satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S.
474, 484 (2000) (holding that when relief is denied on procedural grounds, a petitioner must
establish both that the correctness of the dispositive procedural ruling is debatable, and that the
petition states a debatably valid claim of the denial of a constitutional right).
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SO ORDERED.
Signed: December 19, 2016
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