McBride v. Hunt et al

Filing 7

ORDER DISMISSING CASE as untimely. Court declines to issue a Certificate of Appealability. Signed by Chief Judge Frank D. Whitney on 7/26/17. (Pro se litigant served by US Mail.)(mga)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-00028-FDW
KALVIN NATHANIEL MCBRIDE,

)
)
Petitioner,
)
)
vs.
)
)
NORA HUNT, et al.,
)
)
Respondents.
)
____________________________________)

ORDER

THIS MATTER is before the Court upon Petitioner Kalvin Nathaniel McBride’s pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1).
I.

BACKGROUND

Petitioner is a prisoner of the State of North Carolina who, according to his Petition, pled
guilty in Mecklenburg County Superior Court on November 15, 2007, to second-degree murder
and four counts of robbery with a dangerous weapon. (Pet. 1, Doc. No. 1.) He was sentenced to
a minimum of 193 months and a maximum of 250 months in prison. (Pet. 1.) He did not file a
direct appeal. (Pet. 2.)
On July 19, 2016, Petitioner filed a motion for appropriate relief (“MAR”) in the
Mecklenburg County Superior Court. (Pet. 3.) It was denied on September 16, 2016. (Pet. 3.)
He filed a petition for writ of certiorari in the North Carolina Court of Appeals, seeking review
of the denial of his MAR; it was denied on October 21, 2016. (Pet. 3-4.)
Petitioner filed the instant habeas Petition in this Court on January 13, 2017, when he
placed it in the prison mailing system. (Pet. 14.) After conducting an initial review, the Court
notified Petitioner that his habeas Petition appeared to be untimely under 28 U.S.C. §
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2244(d)(1)(A), and provided him an opportunity to explain why it should not be dismissed as
such. (Doc. No. 5.) Petitioner has responded (Doc. No. 6), and this matter is ripe for review.
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
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.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 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 post2

conviction action. 28 U.S.C. § 2244(d)(2).
Judgment was entered in this case on November 15, 2007, when Petitioner was
sentenced. To the extent he retained the right to a direct appeal subsequent to his guilty plea,
Petitioner had 14 days to file a notice of appeal in the North Carolina Court of Appeals. See
N.C. R. App. P. 4(a)(2). Because he did not file a direct appeal (Pet. 2), Petitioner’s conviction
became final on or about November 29, 2007, 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
November 29, 2008. Although the limitations period is tolled while a properly filed postconviction action is pending in the state courts, see § 2244(d)(2), Petitioner did not file a state
post-conviction action until July 19, 2016, more than five years after the statute of limitations
expired. (Pet. 3.) That MAR neither resurrected nor restarted the statute of limitations. See
Minter v. Beck, 230 F.3d 663, 665–66 (4th Cir. 2000). Thus, absent equitable tolling or
applicability of one of the other provisions of § 2244(d)(1), Petitioner’s habeas petition is timebarred under § 2244(d)(1)(A).
Petitioner asserts, without further explanation, that his habeas Petition is timely under §§
2244(d)(1)(A) and (D). (Pet’r’s Resp. 1, Doc. No. 6.) As demonstrated, however, the Petition
clearly is untimely under § 2244(d)(1)(A). Petitioner’s assertion that the Petition is timely under
§ 2244(d)(1)(D) is equally without merit.
The statute of limitations begins to run under § 2244(d)(1)(D) on the date on which the
factual predicate of the claim or claims presented could have been discovered through the
exercise of due diligence. Petitioner claims that his guilty plea was unknowing, involuntary, and
unintelligent because his attorney misled him about the sentence he would receive; that errors
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occurred during his sentencing proceeding; that his sentence was grossly disproportionate under
the Eighth Amendment; and that counsel’s assistance was ineffective in the context of
Petitioner’s plea and sentencing. The factual predicates for all of these claims were known,
should have been known, or were discoverable by Petitioner on or about November 15, 2007,
when he was sentenced. Consequently, the Petition is not timely under § 2244(d)(1)(D).
Petitioner also appears to believe that he can obtain a review of his claims under Martinez
v. Ryan, 566 U.S. 1 (2012), but he is mistaken. In Martinez, the Supreme Court held that, in
limited circumstances, “[i]nadequate assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner's procedural default [of claims] of ineffective assistance at
trial.” Id. at 9. As an initial matter, Petitioner indicates that he exhausted his ineffective
assistance of trial counsel claim in the state courts. (Pet. 5-6, 10-11.) Consequently, his claim is
not procedurally defaulted on federal habeas review, and Martinez is inapplicable. See id.
Furthermore, Martinez does not serve to toll the statute of limitations. See Lambrix v. Sec'y,
Florida Dep't of Corr., 756 F.3d 1246, 1249 (11th Cir. 2014) (“[T]he equitable rule in Martinez
‘applies only to the issue of cause to excuse the procedural default of an ineffective assistance of
trial counsel claim that occurred in a state collateral proceeding’ and ‘has no application to the
operation or tolling of the § 2244(d) statute of limitations.’” (citations omitted)). In short,
Martinez provides no basis for determining whether a habeas petition is timely.
Finally, Petitioner makes no effort to explain why it took him more than nine years from
his conviction to file a federal habeas petition. Accordingly, there is no basis for the Court to
apply equitable tolling to the statute of limitations in this case. See Holland v. Florida, 560 U.S.
631, 649 (2010) (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
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circumstance stood in his way and prevented timely filing.” (internal quotation marks omitted));
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (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.” (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (internal quotation
marks omitted))).
IV.

CONCLUSION

The Petition for Writ of Habeas Corpus is untimely under § 2244(d)(1)(A), and Petitioner
is not entitled to tolling of the statute of limitations under either statutory or equitable principles.
As such, the Petition shall be dismissed.
IT IS, THEREFORE, ORDERED that:
1. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DISMISSED as untimely
under 28 U.S.C. § 2244(d)(1)(A); 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).
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SO ORDERED.
Signed: July 26, 2017

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