Stevens v. Perry

Filing 7

ORDER DISMISSING CASE. Signed by Chief Judge Frank D. Whitney on 01/27/17. (Pro se litigant served by US Mail.)(emw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16cv378-FDW
RUSSELL WAYNE STEVENS, Jr.,

)
)
Petitioner,
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)
vs.
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)
FRANK L. PERRY,
)
)
Respondent.
)
____________________________________)

ORDER

THIS MATTER is before the Court upon Petitioner Russell Wayne Stevens, Jr.’s pro se
Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1).
I.

PROCEDURAL HISTORY
Petitioner is a prisoner of the State of North Carolina who, on May 5, 2008, pled guilty,

pursuant to a plea deal, in Cleveland County Superior Court to one count of first degree
kidnapping, one count of sale or delivery of a controlled substance to a minor, one count of first
degree sexual exploitation of a minor, and one count of taking indecent liberties with child.
(State’s Resp. to 2016 Cert. Pet. 87, Doc. No. 1-3.)1 The State dismissed charges of statutory
rape of a 13, 14, or 15 year-old by a defendant who is at least six years older, employing or
permitting a minor to assist in an obscene exhibit, possession of burglar’s tools, speeding, and
reckless driving. (Tr. of Plea 11, Pet’r’s Ex. 2, Doc. No. 1-3.) The court consolidated judgment
for the first three convictions and sentenced Petitioner to 132-168 months in prison. The court

Unless otherwise indicated, the procedural history is taken from the State’s Response to Petitioner’s Petition for
Writ of Certiorari filed in the North Carolina Court of Appeals on August 1, 2016. It was attached as an exhibit to
the Petition for Writ of Habeas Corpus although it has no exhibit number. It may be found at Doc. No. 1-3, pages
87-94.
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entered a suspended 21-26 month sentence for the indecent liberties conviction.
Petitioner did not file a direct appeal. On September 28, 2009, he filed a petition for writ
of certiorari in the North Carolina Court of Appeals, which was dismissed on October 12, 2009.
Thereafter, Petitioner filed numerous Motions for Appropriate Relief (“MARs”) in the Cleveland
County Superior Court and petitions for writ of certiorari in the North Carolina Court of Appeals,
all of which were dismissed or denied.2 Petitioner’s most recent certiorari petition was denied on
August 15, 2016. (Order Den. 2016 Cert. Pet. 95, Doc. No. 1-3.)
Petitioner filed the instant § 2254 Petition in this Court on November 10, 2016, when he
placed it in the prison mail system. (Pet. 15, Doc. No. 1.) In it, Petitioner claims that the State
withheld exculpatory material evidence from the defense, in violation of Brady v. Maryland, 373
U.S. 83, 87 (1963). Specifically, he alleges the State suppressed evidence that the victim had
previously made false accusations of sexual assault against at least four other men, and that the
victim admitted to the prosecutor “that she had falsely accused [Petitioner].” (Pet. 5.) He also
claims that the prosecutor destroyed DNA evidence from the case without notifying him prior to
its destruction. (Pet. 5.)
II.

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

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Petitioner filed MARs on July 13, 2010, June 1, 2011, October 18, 2011, October 8, 2014, and June 30, 2016.
(Order Den. June 30, 2016 MAR 77, Doc. No. 1-3.) Petitioner filed petitions for writ of certiorari on or about
November 9, 2009, September 28, 2010, December 19, 2011, and August 1, 2016. (State’s Resp. to 2016 Cert. Pet.
88.)

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power to raise affirmative defenses sua sponte,” including a statute of limitations defense under
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.

STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides a

statute of limitations 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 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. The limitations period is tolled during the pendency of a properly filed state postconviction action. 28 U.S.C. § 2244(d)(2).
Judgment was entered in this case on May 5, 2008, when Petitioner was sentenced. To
the extent Petitioner retained a right to a direct appeal subsequent to his guilty pleas, he had 14
days to file the notice of appeal in the North Carolina Court of Appeals, see N.C. R. App. P.
4(a)(2), which he did not do. Therefore, his conviction became final on or about May 19, 2008,
when the time for seeking direct review expired. See § 2244(d)(1)(A).
The federal statute of limitations then ran for 365 days until it finally expired on or about
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May 19, 2009, more than four months before Petitioner made his first attempt to obtain relief
from judgment in the state courts. Thus, absent statutory or equitable tolling, Petitioner’s habeas
petition is time-barred under § 2244(d)(1)(A).
In addressing the statute of limitations issue, Petitioner provides two reasons why his
habeas petition is untimely. The first is based upon his ignorance of the law, including the oneyear statute of limitations, refusal of North Carolina Prison Legal Services (“NCPLS”) to assist
him with his case, failure of his trial attorney to file a notice of appeal on his behalf, and his own
functional illiteracy. (Pet. 13-14.)
Equitable tolling of 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).
An inmate's pro se status, limited education, and ignorance of habeas law do not justify
equitable tolling because these deficiencies are not “extraordinary.” United States v. Sosa, 364
F.3d 507, 512 (4th Cir. 2004). Nor is a limited education and ignorance of habeas law
necessarily outside the inmate's control. Petitioner’s complaint that his trial attorney did not file
a requested notice of appeal does not explain why he was unable to file a timely federal habeas
petition. In short, Petitioner is not entitled to equitable tolling of the statute of limitations.
Petitioner also makes a non-specific assertion of actual innocence (Pet. 14), which
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apparently is based upon his claim that the State suppressed material, exculpatory evidence that
would have shown he was “falsely accused” (Pet. 5). He does not specify, however, whether he
is actually innocent of one or more of the charges to which he pled guilty, one or more of the
charges that were dismissed by the State, or all of the charges.
According to Petitioner, he was told by a Cleveland County Detective prior to his arrest
in March 2007, that the victim had made false accusations of sexual assault against other men; he
states that told his attorney about these accusations but his attorney did not investigate them.
(Pet’r’s Aff. 27, Pet’r’s Ex. 5, Doc. No. 1-3.) Also according to his affidavit, Petitioner spoke to
the victim by phone in June or July, 2008, after he had begun serving his sentence. (Pet’r’s Aff.
27.) He states the victim told him that before Petitioner entered his guilty plea, she told the
prosecutor she would not testify against Petitioner because he had not sold or provided her drugs
nor had sex with her and that she had only told detectives that he had because she was high on
drugs when she talked to them. (Pet’r’s Aff. 27.) The latter allegation about the victim is
supported by an affidavit signed by Petitioner’s sister on June 2, 2016. (Aff. of Jenny Michelle
Steele 18-21, Pet’r’s Ex. 4, Doc. No. 1-3.) According to that affidavit, in June or July, 2008,
Petitioner’s sister heard the victim say she told the prosecutor Petitioner never had sex with her
nor gave her drugs. (Steele Aff. 21.) Steele also states that on the same day in June or July,
2008, the victim told Petitioner, by phone, what she had said to the prosecutor. (Steele Aff. 21.)
Under § 2244(d)(1)(D), the statute of limitations begins to run on “the date on which the
factual predicate of the claim or claims presented could have been discovered through the
exercise of due diligence.” Id. Assuming, without deciding, that § 2244(d)(1)(D) applies here,
the latest date on which Petitioner’s statute of limitations would have begun to run for his Brady
claim was July 31, 2008. It would have expired on or about July 31, 2009, almost two months
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before Petitioner took his first action seeking relief in the state courts.
In McQuiggin v. Perkins, the Supreme Court recognized a “miscarriage of justice”
exception to § 2244(d)(1)(D). 133 S. Ct. 1924, 1928 (2013). Under this exception, a credible
showing of actual innocence may allow a petitioner to pursue his constitutional claims on the
merits notwithstanding expiration of the statute of limitations. Id. at 1931. A “credible showing
of actual innocence” requires a petitioner to “persuade[ ] the district court that, in light of the
new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Id. at 1928 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)) (internal
quotation marks omitted). “To be credible, such a claim requires [the] petitioner to support his
allegations of constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 513 U.S. at 324.
The credibility of Petitioner’s assertion of actual innocence is immediately undermined
by his guilty plea, which required him to affirmatively acknowledge that he was, in fact, guilty of
the four charges to which he pled. (Tr, of Plea 9, Pet’r’s Ex. 2, Doc. No. 1-3.) Moreover,
according to his own affidavit, Petitioner pled guilty after having been told by a detective that the
victim previously had falsely accused four men of sexual assault. (Pet’r’s Aff. 27.) Therefore,
this “evidence” is not “new.” Furthermore, he fails to address other evidence that would have
factored into his decision to plead guilty, including a Cleveland County Sheriff’s Department
Investigative Report and a Search Warrant Application in which investigators state that
Petitioner admitted having consensual sex with the 15 year-old victim. (Inv. Rpt. of T.O. Curry
31, Pet’r’s Ex. 7, Doc. No. 1-3; Search Warrant Appl. 32, Doc. No. 1-3.)
The credibility of the information about the victim is further suspect because its only
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sources are Petitioner and his sister. See Schlup, 513 U.S. at 332 (“A court may consider how . .
. the likely credibility of [a petitioner's] affiants bear on the probable reliability of . . . evidence
[of actual innocence].”). More importantly, however, Petitioner fails to explain why it took him
eight years to bring this “evidence” about the victim to light.
“Unexplained delay in presenting new evidence bears on the determination whether the
petitioner has made the requisite showing” that “it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.” McQuiggin, 133 S. Ct. at
1935 (citing Schlup, 513 U.S. at 332, 327). Petitioner presented this “new” evidence for the first
time in his fifth MAR, filed on June 30, 2016. (Order Den. June 30, 2016 MAR 78, Doc. No. 13.) When reviewing the evidence, the Cleveland County Superior Court found that Petitioner
had not demonstrated “good cause for failing to address these issues in a previous MAR filing”
and concluded that Petitioner had failed to demonstrate that a “miscarriage of justice” had
occurred; that is, that it is “more likely than not that, . . . no reasonable juror would have found
the Defendant guilty of the crimes to which he has pled guilty” in the light of the new evidence.
(Order Den. June 30, 2016 MAR 78.)
This Court agrees. Petitioner filed four MARs in the Cleveland County Superior Court
between July 13, 2010, and June 29, 2016. (Order Den. June 30, 2016 MAR 77.) His failure to
raise a claim based upon the evidence cited herein in one of those MARs, in combination with
the other factors the Court has listed, is fatal to the probable reliability of that evidence. He,
therefore, has not made a credible showing of actual innocence. See McQuiggin, 133 S. Ct. at
1928.
IV.

CONCLUSION
Petitioner’s § 2254 habeas Petition is untimely under § 2244(d)(1)(A) and §
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2244(d)(1)(D). He has failed to make the requisite showing to warrant equitable tolling, see
Rouse, 339 F.3d at 246, or application of the “miscarriage of justice” exception to the statute of
limitations, see McQuiggin, 133 S. Ct. at 1928. Consequently, his habeas Petition shall be
dismissed as untimely.
IT IS, THEREFORE, ORDERED that:
1. Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc.
No. 1) is DISMISSED as untimely; and
2. 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).
Signed: January 27, 2017

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