Johnson v. Priest

Filing 5

MEMORANDUM OF DECISION AND ORDER re #1 Petition for Writ of Habeas Corpus is Dismissed and #2 MOTION (Sealed - Participants) to Proceed in forma pauperis is Granted. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, this Court declines to issue a certificate of appealability. Signed by Chief Judge Martin Reidinger on 2/7/2024. (Pro se litigant served by US Mail.) (smm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:23-cv-00886-MR
MONTAVIUS ANTOINE JOHNSON,

)
)
Petitioner,
)
)
vs.
)
)
PAZAVAR PRIEST, Acting Warden, )
)
Respondent.
)
________________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court upon initial review of the Petition for
Writ of Habeas Corpus filed by the Petitioner on December 18, 2023
pursuant to 28 U.S.C. § 2254. [Doc. 1]. Also before the Court is the
Petitioner’s Motion for Leave to Proceed In Forma Pauperis. [Doc. 2].
I.

BACKGROUND
Petitioner Montavius Antoine Johnson (“the Petitioner”) is a prisoner of

the State of North Carolina. The Petitioner was convicted of first-degree
felony murder and armed robbery in Mecklenburg County, North Carolina on
February 8, 2002. [Doc. 1 at 1]; State v. Johnson, 161 N.C.App. 504 (N.C.
Ct. App. December 2, 2003). The Petitioner was sentenced to a term of life
in prison without parole. [Id.].
The Petitioner filed a direct appeal and his judgment of conviction was

upheld by the North Carolina Court of Appeals on December 2, 2003.1 [Id.].
The Petitioner did not seek further appellate review of his judgment of
conviction. [Doc. 1 at 2].
The Petitioner states that he did not file any other petitions or motions
concerning his judgment of conviction in state court. [Id. at 3]. However, the
record reflects that the Petitioner did file the following pro se post-conviction
motions in the Mecklenburg County Superior Court: 1) Motion for
Preservation of Evidence & Post-Conviction DNA Testing, filed on December
5, 2013 and denied on January 14, 2014; and 2) Notice and Petition for
Discharge from Imprisonment and Notice for Provisional Release (construed
as a Motion for Appropriate Relief) filed on January 30, 2014 and denied on
March 4, 2015. See [Docs. 8-5 to 8-13 of W.D.N.C. Case No. 3:16-cv-00003FDW]. The issues raised in the present § 2254 were not raised in these
filings. [Id.].
On January 5, 2016, the Petitioner filed a § 2254 petition for writ of
habeas corpus in this Court challenging his judgment of conviction. See

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The Petitioner raised the following claims on direct appeal: 1) ineffective assistance of
counsel for failing to keep promise made during opening statement that affirmative
defense would be presented; 2) ineffective assistance of counsel for failing to object to
improper questioning of witness; 3) lack of evidence to support armed robbery conviction;
4) trial court improperly denied motion to dismiss armed robbery charge; 5) trial court
erroneously disallowed witness testimony. State v. Johnson, 161 N.C.App. 504 (N.C. Ct.
App. December 2, 2003).
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[Docs. 1, 11, 20 of W.D.N.C. Case No. 3:16-cv-00003-FDW]. The Court
granted summary judgment in favor of the Respondent and dismissed the §
2254 petition as untimely filed on May 9, 2017. [Id.].
The Petitioner filed his § 2254 petition in this Court on December 18,
2023. [Doc. 1].
II.

STANDARD OF REVIEW
Under 28 U.S.C. § 2254, a prisoner in custody under a state court

judgment may attack his conviction and sentence on grounds that it violates
the Constitution and/or laws or treaties of the United States by filing a petition
for writ of habeas corpus. Rule 2(c) of the Rules Governing Section 2254
Cases requires a petitioner to specify all the grounds for relief available to
him and state the facts that support each ground. Rule 2(c), 28 U.S.C. foll.
§ 2254. In reviewing a § 2254 petition, the Court is guided by Rule 4 of the
Rules Governing Section 2254 Cases, which directs the district court to
dismiss a petition when it plainly appears from the petition and any exhibits
that the petitioner is not entitled to relief. Rule 4, 28 U.S.C. foll. § 2254.
III.

DISCUSSION
A.

Motion to Proceed In Forma Pauperis

The Petitioner moves this Court for an application to proceed in forma
pauperis. [Doc. 2]. Rule 3(a) of the Rules Governing Section 2254 Cases

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requires that a petition be accompanied by the applicable filing fee or motion
for leave to proceed in forma pauperis. Federal courts may excuse the
required fees if the litigant demonstrates that he cannot afford to pay. 28
U.S.C. § 1915(a)(1).
The Petitioner’s application shows that he has no income or and no
amounts of money in any bank accounts. [Doc. 2]. As such, the Court finds
that the Petitioner has insufficient funds to pay the required filing fee and his
motion to proceed in forma pauperis is granted for the limited purpose of this
Court’s initial review of the § 2254 petition.
B.

Initial Review of § 2254 Petition

The Petitioner raises four grounds for relief in his § 2254 petition. In
ground one, the Petitioner alleges that he did not properly waive his right to
a probable cause hearing and was denied the right to cross-examine
witnesses and present evidence on his behalf. [Doc. 1 at 5-6]. The Petitioner
claims that his conviction is therefore based upon a null and void indictment
because the superior court lacked subject matter jurisdiction to prosecute
him. [Id.]. In grounds two and four, the Petitioner alleges that the state
prosecuted him without proper jurisdiction, thereby committing gross and
malicious prosecution. [Id. at 8-9, 15-18]. In ground three, the Petitioner
alleges that counsel was ineffective for failing to object, for making
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misrepresentations, and for ignoring required procedures. [Id. at 10-13]. The
Petitioner seeks immediate release and requests that his sentence be
vacated. [Id. at 23].
i.

Timeliness of § 2254 Petition

A § 2254 petition must be filed within one year from the date the
judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1). The North
Carolina Court of Appeals issued its opinion affirming Petitioner's conviction
on December 2, 2003. Petitioner then had thirty-five days in which to file a
petition for discretionary review in the North Carolina Supreme Court but
failed to do so. As such, his conviction became final on or about January 6,
2004, when the time for seeking discretionary review expired. See N.C.
R.App. P. Rules 14(a) and 15(b)(15 days to file from the issuance of the
Court of Appeals’ mandate to file notice of appeal and/or petition for
discretionary review in North Carolina Supreme Court) and Rule
32(b)(unless court orders otherwise, mandate issues 20 days after written
opinion filed). The federal statute of limitations then proceeded to run for
365 days until it fully expired on or about January 6, 2005.
While a properly filed state post-conviction Motion for Appropriate
Relief (“MAR”) may toll the federal statute of limitations under § 2244(d)(2),
the limitations period will not be tolled where the MAR is filed after the one5

year statute of limitations has already expired. See Minter v. Beck, 230 F.3d
663, 665–66 (4th Cir. 2000)(recognizing that state applications for collateral
review cannot revive an already expired federal limitations period). Although
the Petitioner filed two post-conviction motions in Mecklenburg County
Superior Court, those motions were filed long after the federal statute of
limitations expired and both were unrelated to the issues raised in the
present § 2254 petition.
The Petitioner attempts to circumvent the untimeliness of his § 2254
petition by arguing that the statute of limitations is tolled because the lack of
subject matter jurisdiction can be raised at any time and because his petition
is based upon newly discovered evidence that was not previously known to
him. [Doc 1 at 5, 7]. Under § 2244(d)(1)(D), a claim of newly discovered
evidence must be filed within one year from “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)(D). “[B]y its
terms, § 2244(d)(1)(D) is triggered not when a petitioner actually learns of
some pertinent information from newly-discovered evidence; rather, it
commences when he ‘could have ... discovered’ it.” Sawyer v. Kiser, 2017
WL 631574, *4 (E.D. Va. Feb. 15, 2017)(emphasis original). The Petitioner
provides nothing more than conclusory assertions that his claims are based
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upon newly discovered evidence. He provides no account or description of
what facts or information has been recently discovered that could constitute
newly discovery evidence to justify the untimely filing of his § 2254 petition.
The Petitioner’s allegations pertain to events that occurred at his pre-trial and
trial proceedings and he does not explain how he was prevented from timely
discovering any such facts with due diligence.
The Petitioner’s argument that he can challenge at any time the state’s
lack of subject matter jurisdiction also fails because such claim is not
cognizable in this federal habeas proceeding. See Estelle v. McGuire, 502
U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)(holding that federal
habeas review is not available to review errors of state law); Wright v.
Angelone, 151 F.3d 151, 158 (4th Cir. 1998)(holding that the issue of
whether or not a state court has subject matter jurisdiction is an issue of state
law); Griffin v. Padula, 518 F. Supp. 2d 671, 677 (D.S.C. July 6,
2007)(dismissing habeas petition as untimely despite the petitioner’s attempt
to raise state court’s lack of subject matter jurisdiction as there was “no
exception under AEDPA for subject matter jurisdiction claims”). As such, the
§ 2254 petition is subject to dismissal as untimely filed.

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ii.

Exhaustion of State Remedies

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
petitioner must exhaust his available state remedies before he may pursue
habeas relief in federal court. 28 U.S.C. § 2254(b)(1)(A). In North Carolina,
a petitioner may satisfy § 2254’s exhaustion requirement “in two ways”: (1)
by directly appealing his conviction to the North Carolina Court of Appeals
and then petitioning the North Carolina Supreme Court for discretionary
review; or (2) by filing a state post-conviction proceeding and petitioning the
North Carolina Court of Appeals for a writ of certiorari. Joyner v. Hooks,
2019 WL 3561429, *3 (E.D.N.C. 2019); N.C. Gen.Stat. § 7A–31; N.C.
Gen.Stat. § 15A–1422. See also McNeil v. Whitener, 2012 WL 4086510, *5
(E.D.N.C. 2012)(to satisfy the exhaustion requirement, a petitioner must
show that “his instant federal claims followed along one of these two tracks
to completion of review in the state courts”).
The Petitioner admits that he did not seek further appellate review after
the North Carolina Court of Appeals affirmed his judgment of conviction
December 2, 2003. The Petitioner also did not file any post-conviction
motions in state court raising the issues he now attempts to raise in this §
2254 federal habeas proceeding. As such, the Petitioner did not exhaust his

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available state remedies before seeking relief in this Court and his § 2254 is
procedurally barred.
iii.

Successive § 2254 Petition

A petitioner’s ability to attack the same criminal judgment in multiple
collateral proceedings is expressly limited. Under the AEDPA, “[b]efore a
second or successive application ...is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” See 28 U.S.C. § 2244(b)(3)(A).
Failure to obtain authorization from the appellate court deprives the district
court of jurisdiction to consider the petitioner’s successive petition. Burton v.
Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007).
The Petitioner previously filed a § 2254 habeas corpus petition in this
Court on January 5, 2016 challenging his underlying conviction and raising
claims of ineffective assistance of counsel and suppression of exculpatory
evidence by the prosecution. See [Docs. 1, 11, 20 of W.D.N.C. Case No.
3:16-cv-00003-FDW]. The Court granted summary judgment in favor of the
Respondent and dismissed the § 2254 petition as untimely filed. [Id.]. As
such, the pending § 2254 is successive. See Leatherwood v. Perry, No.
1:14-cv-220, 2015 WL 4756984, *3 (W.D.N.C. August 12, 2015)(“dismissal
of a habeas petition as time-barred is a decision on the merits and any
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subsequent habeas petition challenging the same conviction or sentence is
‘second or successive’ for purposes of 28 U.S.C. § 2244(b)”).
The Petitioner has not shown that he obtained authorization from the
appellate court prior to filing his successive habeas petition as required by
28 U.S.C. § 2244(b)(3)(A). As such, the § 2254 petition shall be dismissed
as successive and unauthorized.
IV.

CONCLUSION
For the reasons set forth above, the Petitioner’s § 2254 petition shall

be dismissed. The Court grants the Petitioner’s in forma pauperis application
for the limited purpose of this Court’s initial review of the § 2254 petition.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,
this Court declines to issue a certificate of appealability. See 28 U.S.C. §
2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (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. 473, 484 (2000)(when relief is denied
on procedural grounds, a petitioner must establish both that the dispositive
procedural ruling is debatable and that the petition states a debatable claim
of the denial of a constitutional right).

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IT IS, THEREFORE, ORDERED that:
1. The Petition for Writ of Habeas Corpus [Doc. 1] is DISMISSED.
2. The Petitioner’s Motion to Proceed In Forma Pauperis [Doc. 2] is
GRANTED.
3. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,
this Court declines to issue a certificate of appealability.
IT IS SO ORDERED.
Signed: February 7, 2024

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