Johnson v. Mitchell

Filing 26

ORDER denying 22 Motion for New trial, Amendment of Judgment. Signed by Chief Judge Frank D. Whitney on 6/12/17. (Pro se litigant served by US Mail.)(ssh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16cv003-FDW
MONTAVIUS ANTOINE JOHNSON,

)
)
Petitioner,
)
)
vs.
)
)
DAVID MITCHELL,
)
)
Respondent.
)
____________________________________)

ORDER

THIS MATTER is before the Court upon Petitioner’s pro se “Motion for New Trial,
Amendment of Judgment,” which shall be considered under Rule 59(e) of the Federal Rules of
Civil Procedure.1 (Doc. No. 22).
I.

RELEVANT BACKGROUND
Petitioner is a prisoner of the State of North Carolina who is serving a life-sentence for

first-degree murder. The State’s evidence at his trial tended to show that:
On 2 July 1999 at approximately 2:30 a.m., Kimberly Pegues met her boyfriend
Antonio Baker at a friend's apartment. When Pegues arrived, she noticed that Baker
had a 10-millimeter Glock handgun in his pocket. Shortly thereafter, the couple
left the apartment and Baker put the gun in his car. The couple then drove their
separate cars to a fast food restaurant where Pegues got out of her vehicle to use the
phone; Baker remained in his car. Upon returning to her car and backing out of the
parking space, Pegues saw Defendant and another person approach Baker's car
(later identified as C.J. Toney). Pegues heard someone yell “Give me your shit”
and then “I don't have anything, man.” Pegues saw defendant rummaging through
Baker's car, and observed him throw belongings from Baker's glove box and back
seat into the street. Pegues heard a shot and saw Defendant run back to his vehicle.
Shortly thereafter, defendant returned to Baker's car and Pegues heard another shot.
Baker died from a gunshot wound to the head.
A police investigation uncovered a 10-millimeter shell in Defendant's yard, with
Petitioner’s Motion is considered under Federal Rule of Civil Procedure 59(e) because it was filed within 28 days
of entry of judgment. Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28
days after the entry of the judgment.”).
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markings consistent with having been fired from a 10-millimeter Glock.
At trial, Defendant's counsel made the following statements during his opening
statement:
C. J. Toney is the individual who shot both shots that night. That is our contention.
And, he is the individual who shot and killed Baker.
Now, what happens in between there is a question of whether Mr. Johnson was
trying to prevent that or not. Now remember, whatever Ms. Pegues tells you, we're
asking you to pay close attention to it and look at; because, the positioning of the
people is very important; where they were; and, what they may or may not have
been doing.
Because, there may have been other reasons why Mr. Johnson was in between Mr.
Toney and Mr. Baker. And, we will ask you to consider those reasons, at the
appropriate time.
So, listen carefully to this eyewitness testimony and weigh what could have been
seen and what could not be seen.
State v. Johnson, 588 S.E.2d 488, 489-90 (N.C. Ct. App. 2003).
After pursuing remedies in the state courts, Petitioner filed a pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on December 29, 2015. (Doc. No. 1.)
The Court subsequently granted the State’s Motion for Summary Judgment and dismissed the
habeas Petition as untimely under 28 U.S.C. § 2244(d)(1)(A). (Doc. No. 11.) The Court also
concluded that Petitioner could not rely upon the actual innocence exception to 28 U.S.C. §
2244(d)(1)(D), see McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013), to get around the statute
of limitations. (Doc. No. 11.)
On appeal, the Fourth Circuit Court of Appeals concluded that this Court had “failed to
consider [Petitioner’s] claims that his petition was timely pursuant to 28 U.S.C. § 2244(d)(1)(C),
(D) (2012).” (Doc. No. 16.) It dismissed the appeal and remanded to this Court for
consideration of those “claims.”
On remand, the Court held that neither § 2244(d)(1)(C) nor (D) was applicable, granted
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Summary Judgment to the State, and again dismissed the Petition as untimely. (Doc. No. 20.)
Petitioner has now filed the instant Motion seeking reconsideration of the Court’s judgment that
the Petition is untimely.
II.

STANDARD OF REVIEW
A district court “has the discretion to grant a Rule 59(e) motion only in very narrow

circumstances: ‘(1) to accommodate an intervening change in controlling law; (2) to account for
new evidence not available at trial; or (3) to correct a clear error of law or to prevent manifest
injustice.’” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (quoting Collison v. Int'l Chem.
Workers Union, 34 F.3d 233, 236 (4th Cir. 1994)). “Rule 59(e) motions may not be used to
make arguments that could have been made before the judgment was entered.” Hill, 277 F.3d at
708.
III.

DISCUSSION
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.
28 U.S.C. § 2244(d)(1).
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As this Court has explained twice before, Petitioner’s judgment of conviction became
final on or about January 6, 2004. (Order 4, Doc. No. 11; Order 6, Doc. No. 20.) The statute of
limitations then ran, uninterrupted, for 365 days until it expired on or about January 6, 2005.
Petitioner did not file his federal habeas Petition until December 29, 2015. It is, therefore,
undisputed that the habeas Petition is untimely under § 2244(d)(1)(A).
The only way Petitioner may obtain review of the claims raised in his habeas Petition is
to demonstrate that the Petition is timely under § 2244(d)(1)(B), (C), or (D), that equitable tolling
applies, or that he has made a credible showing of “actual innocence” to justify setting aside the
statute of limitations, see McQuiggin, 133 S. Ct. at 1928. As the Court noted in its original
Order dismissing the Petition as untimely, Petitioner put forward no argument or assertion of
entitlement to equitable tolling of the statute of limitations. (Order 9 n.4, Doc. No. 11.) The
Fourth Circuit determined that Petitioner had argued his Petition was timely under §
2244(d)(1)(C) and (D); it made no such determination with respect to § 2244(d)(1)(B). (Doc.
No. 16.) Had Petitioner argued that his Petition was timely under § 2244(d)(1)(B), the Fourth
Circuit undoubtedly would have included that in its remand.
In the instant Rule 59 Motion, Petitioner does not challenge this Court’s holding that §
2244(d)(1)(C) does not apply. Nor does he challenge the Court’s reasons for concluding that §
2244(d)(1)(D) does not apply. Instead, he argues that § 2244(d)(1)(D) applies on grounds the
Court did not address in either of its previous Orders.
Petitioner has maintained throughout his pleadings that he did not kill Baker but was
standing between Baker and C.J. Toney when Toney shot Baker in the back. According to
Petitioner, the bullet traveled through his left shoulder and entered Baker’s back left shoulder.
Petitioner has alleged in each of his pleadings that the State suppressed evidence that Petitioner
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did not kill the victim. The evidence the State is alleged to have suppressed has expanded with
each of Petitioner’s pleadings. In the habeas Petition, Petitioner claimed the State failed to
disclose that his DNA was on the bullet that killed Baker. (Pet. 18, Doc. No. 1.) In his Response
to the State’s Motion for Summary Judgment, he further alleged that the State failed to disclose
that his DNA was on Baker’s clothing. (Pet’r’s Resp. to Summ. J. Mot. 13-14, Doc. No. 10.)
The Court dealt with each of those contentions in one or both Orders granting Summary
Judgment to the State.
The instant Rule 59 Motion is largely taken up by a claim that the State suppressed
Petitioner’s own hospital records by failing to present them to the jury and by preventing his
defense from also presenting the evidence to the jury. Petitioner raised this claim for the first
time in his Response to the Motion for Summary Judgment. The Court did not address the claim
in either of its prior Orders because: 1) Petitioner did not file a motion to amend his Petition to
add a new claim; 2) the Petition itself was untimely; and 3) the new claim did not relate back to
the claims raised in the Petition. The Court will address the claim here in the hope of clearing up
Petitioner’s misunderstanding of what is required of the State with respect to disclosure of
evidence.
The Supreme Court held in Brady v. Maryland, that a due process violation occurs when
the prosecution fails to disclose evidence to the defense that is favorable to the accused and is
material either to guilt or to punishment, regardless of whether the prosecution acted in good
faith. 373 U.S. 83, 87 (1963). Petitioner claims that the State violated Brady by filing a motion
in limine to preclude defense inquiry into, or evidence of, another’s guilt during the State’s casein-chief. (Pet’r’s Resp. to Summ. J. Mot. 2-3 ¶ 1, 7-8 ¶ 6.) The evidence of another’s guilt the
State allegedly “suppressed” was Petitioner’s hospital records documenting his treatment, five
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days after the murder, for a gunshot wound to the left shoulder. (Pet’r’s Resp. to Summ. J. Mot.
2-3 ¶ 1, 7-8 ¶ 6.)
This is not a Brady claim. Brady requires the government to disclose material,
exculpatory evidence to the defense; it does not require the government to present that evidence
to a jury. Thus, the State did not “suppress” Petitioner’s records; 2 the State asked the trial court
to prohibit defense counsel from referring to or introducing the records or other evidence while
the State was presenting its case to the jury. If there was a viable cause of action under the
Constitution stemming from the State’s motion in limine, it arose when the trial court granted the
motion, and Petitioner could have challenged the court’s ruling on direct appeal.
For the purpose of determining whether statutory tolling under § 2244(d)(1)(D) applies,
the Court is required to determine when Petitioner, through the exercise of due diligence could
have discovered the factual predicate for his claim. As demonstrated, the factual predicate for any
claim related to the State’s motion in limine arose when the motion was granted and/or when
appellate counsel failed to challenge the trial court’s ruling on direct appeal. Consequently,
Petitioner’s “claim,” is as untimely under § 2244(d)(1)(D), as it is under § 2244(d)(1)(A).
Additionally, the existence of the hospital records requires no change to the Court’s
conclusion that Petitioner does not qualify for the “actual innocence” exception to the statute of
limitations. Under that 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.
McQuiggin, 133 S. Ct. at 1931. The miscarriage of justice exception applies only to cases “in which
new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the
petitioner].’” Id. at 1933 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)) (internal quotation

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Petitioner could have obtained a copy of his hospital records at any time by filing a medical release form.

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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.
Petitioner’s medical records demonstrate only that five days after the murder, Petitioner was
treated for a gunshot wound to the left shoulder. Contrary to Petitioner’s assertions, the records do
not demonstrate that the wound was five days old. Nor do the records demonstrate that Petitioner’s
wound was made by the same caliber of bullets recovered from the victim’s body or that he and the
victim were shot with the same gun. Most importantly, Baker died from a gunshot wound to the
head, not the shoulder. Thus, even if evidence had been presented that five days after the murder,
Petitioner was treated for a gunshot wound to the left shoulder, he has not demonstrated that “it is
more likely than not that no reasonable juror would have” concluded that he did not shoot Baker in
the head.
IV.

CONCLUSION

Petitioner has failed to show the existence of any of the circumstances under which a
Rule 59(e) motion may be granted. See Hill, 277 F.3d at 708. Accordingly, his Motion shall be
denied.
IT IS, THEREFORE, ORDERED that Petitioner’s “Motion for New Trial, Amendment
of Judgment” (Doc. No. 22) is DENIED.
Signed: June 12, 2017

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