Flowers v. Harkleroad
Filing
29
ORDER granting 12 Motion for Summary Judgment and petn is dismissed as time-barred. Court declines to issue a Certificate of Appealability; denying as moot 17 Motion to Review 08 Stmt by Alex Co Sheriff's Dept; deny ing as moot 18 Motion to Review Petr's Claim 2 in MAR and Claim 3 of Habeas Petn; denying as moot 20 Motion to Review Claim 4 of petr's MAR and Claim 4 of Habeas Petn. Signed by Chief Judge Robert J. Conrad, Jr on 11/20/2012. (Pro se litigant served by US Mail.)(cbb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:12-cv-49-RJC
EARL WAYNE FLOWERS,
)
)
Petitioner,
)
)
v.
)
)
SID HARKLEROAD, Administrator,
)
Marion Correctional Institution,
)
)
Respondent.
)
____________________________________)
ORDER
THIS MATTER comes before the court on Respondent’s Motion for Summary
Judgment on statute of limitations grounds. (Doc. No. 12). Also pending before the Court are
the following motions by Petitioner: (1) Motion Request to the Court to Review 08 Statement by
Alexander County Sheriff’s Department, (Doc. No. 17); (2) Motion Requesting the Court to
Review Petitioner’s Claim 2 Presented in His MAR and Claim 3 of 5:12cv49 Habeas Petition,
(Doc. No. 18); and (3) Motion to Review Claim 4 of Petitioner’s MAR and Claim 4 of Habeas
Petition 5:12cv49 Concerning Due Process, (Doc. No. 20).
I.
BACKGROUND
Petitioner is a prisoner of the State of North Carolina. On April 30, 2010 in Alexander
County Superior Court, before the Honorable Christopher M. Collier, Petitioner pled guilty to
second-degree murder pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). (Doc. No. 8-4
at 9-12, 23-24). The trial court sentenced Petitioner to 216-269 months’ imprisonment. (Id.,
Doc. No. 8-4 at 23). Petitioner was represented during his plea by Robert Campbell. (Id.).
Petitioner filed a pro se motion for appropriate relief (“MAR”) in Alexander County Superior
Court on September 8, 2011. (Doc. Nos. 8-3 at 10-36; 8-4 at 1-3). The MAR Court, Judge
Collier presiding, denied the MAR on September 13, 2011. (Doc. No. 8-3 at 9).
On January 6, 2012, Petitioner filed a pro se petition for writ of certiorari in the North
Carolina Court of Appeals, seeking review of the MAR court’s order denying his MAR. (Doc.
Nos. 8-3 at 1-8; 8-2 at 5-14). The North Carolina Court of Appeals denied Petitioner’s certiorari
petition on January 17, 2012. (Doc. No. 8-2 at 4).
On February 17, 2012, Petitioner filed a petition for discretionary review in the North
Carolina Supreme Court to review the North Carolina Court of Appeals’ order denying his
certiorari petition, and the North Carolina Supreme Court dismissed the petition on June 13,
2012. (Doc. No. 14-1). Petitioner submitted his § 2254 petition on April 23, 2012, and it was
stamp-filed on April 27, 2012.
Petitioner alleges the following grounds for relief in his petition: (1) that his due process
rights were violated because his guilty plea was invalid, unknowing, and involuntary; (2) that
there was a defect in his indictment constituting a violation of due process; (3) that he received
ineffective assistance of counsel; (4) that he was subjected to prosecutorial vindictiveness; and
(5) that his Confrontation Clause Rights were violated.
II.
STANDARD OF REVIEW
Summary judgment is appropriate in those cases where there is no genuine dispute as to
any material fact, and it appears that the moving party is entitled to judgment as a matter of law.
FED . CIV . P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible
inferences to be drawn from the underlying facts must be viewed in the light most favorable to
the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986). Where, however, the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
III.
ANALYSIS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104-132, 110 Stat. 1214, a petition for a writ of habeas corpus by a person in custody
pursuant to the judgment of a state court 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). In addition, the one-year limitations period is tolled during pendency of
a properly filed state post-conviction proceeding. See 28 U.S.C. § 2244(d)(2).
Petitioner’s § 2254 petition is barred by the AEDPA’s statute of limitations. Under the
AEDPA, Petitioner’s federal habeas corpus petition was due one year after his conviction
became final. See 28 U.S.C. § 2244(d). Because Petitioner pled guilty and was sentenced in the
presumptive sentencing range, his conviction became final on direct review when his judgment
of commitment was entered on April 30, 2010. See Redfear v. Smith, No. 1:11cv162, 2007 WL
3046345, at *2 (W.D.N.C. Oct. 17, 2007). Thereafter, Petitioner had one year, or until May 2,
2011 (April 30, 2011 was a Saturday), to file his § 2254 petition. Because Petitioner did not
commence his § 2254 proceeding until on or about April 23, 2012, his § 2254 petition is nearly
one year late.
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Furthermore, none of Petitioner’s state court, post-conviction petitions and/or motions,
beginning with the MAR filed in September 2011, served to revive the already expired one-year
period of limitation. See Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000) (concluding that §
2254 petition was “clearly time-barred,” where petitioner had moved for post-conviction relief in
state court only after time limitation had expired). Similarly, any miscellaneous letters, motions,
and/or requests for copies of documents, records, transcripts, and information, or any other
requests for discovery, appointment of counsel, etc. did not toll the one-year period of limitation
pursuant to § 2244(d)(2). See Rouse v. Lee, 339 F.3d 238, 245-46 (en banc) (4th Cir. 2003)
(rejecting a claim that one-year period of limitation remains tolled until the petitioner receives a
copy of the denial order in the mail), cert. denied, 541 U.S. 905 (2004).
The AEDPA’s statute of limitations is subject to equitable tolling where the petitioner
can establish “‘(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, 130 S. Ct.
2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In his § 2254
petition, Petitioner argued with regard to the timeliness of his petition:
that newly discovered evidences [sic] have been presented in his collateral attacks
and the[y] are incorporated hereto as a reference. Pursuant to 28 U.S.C. §
2244(d)(1)(D). Petitioner found vital information that proves Petitioner’s
evidence to be innocent of the crime and that information was only available on
or about September 2011. Wherefore, Petitioner respectfully request(s) that this
petition be treated timely filed pursuant to 28 U.S.C. § 2244(d)(1)(D).
(Doc. No. 1 at ¶ 18).
On May 25, 2012, this Court ordered Petitioner to further elaborate as why his § 2254
petition should be considered timely and what specific evidence was not discovered until
September 2011 and showed his innocence. (Doc. No. 5). On June 13, 2012, Petitioner
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submitted a memorandum in accordance with the Court’s order, in which he alleged that he did
not receive a copy of his file as maintained by his attorney Robert Campbell until September
2011, despite the fact that he had requested the file from Campbell in June 2010. See (Doc. No.
6). Petitioner stated in his additional memorandum that the files he received in September 2011
contained statements by the victim’s wife, in which the wife stated that a truck and car, which
she described as a Monte Carlo, pulled up to the victim’s house before the victim was shot and
killed. Although it is not entirely clear, Petitioner seems to argue that this proves his innocence
because he drove a Grand Prix, not a truck or a Monte Carlo.
Petitioner also stated in the memorandum that ballistics evidence in his attorney’s file
indicated that Petitioner’s gunshot residue tests were negative and that the guns in Petitioner’s
possession at the time of his arrest could not have fired the bullets found in the victim’s body.
Petitioner contends that because he did not receive the above-noted evidence until September
2011, the one-year period of limitations began in September 2011 under 28 U.S.C. §
2244(d)(1)(D), which provides that the AEDPA statute of limitations can begin 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.” For the following reasons, Petitioner’s claim is without
merit.
The Court first notes that federal courts apply § 2244(d)(1)(D) rather than §
2244(d)(1)(A) (the date on which the conviction becomes final) to determine the start date of the
limitations period only in the strictest circumstances–that is, “only ‘if vital facts could not have
been known.’” Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (quoting Owens v. Boyd,
235 F.3d 356, 359 (7th Cir. 2000)). The statute of limitations begins to run under §
2244(d)(1)(D) when a petitioner knows, or through due diligence could have discovered, the
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facts for his claims, not when he recognizes their legal significance. Owens, 235 F.3d at 359.
Furthermore, the accrual of the statute of limitations does not await the collection of evidence to
support the factual basis for a claim. Flanagan v. Johnson, 154 F.3d 196, 198-99 (5th Cir. 1998)
(“Section 2244(d)(1)(D) does not convey a statutory right to an extended delay, in this case more
than seven years, while a habeas petitioner gathers every possible scrap of evidence that might,
by negative implication, support his claim.”).
In other words, § 2244(d)(1)(D) does not convey a statutory right to an extended delay
while a petitioner gathers every possible scrap of evidence that might support his claim. Rather,
it is the actual or putative knowledge of the pertinent facts of a claim that starts the clock running
on the date on which the factual predicate of the claim could have been discovered through due
diligence. Petitioner has not met his burden of demonstrating due diligence in discovering the
so-called newly discovered evidence. As noted above, Petitioner argues that the statute of
limitations started running in September 2011, when he claims to have received the discovery
materials from attorney Campbell. Petitioner has failed to explain why he waited over a year,
specifically until August 1, 2011 (over one year after originally writing Campbell in June 2010),
to follow up on the request for a copy of his attorney’s files. In sum, Petitioner has not shown
that he exercised due diligence in discovering the alleged evidence.1
In addition to arguing that a different accrual date for the statute of limitations applies,
1
Furthermore, as Respondent notes, by Petitioner’s own allegations, before he pled guilty
it was in Petitioner’s personal knowledge that he was allegedly innocent and he believed that
there was evidence to support that. Petitioner contends that counsel coerced him into pleading
guilty, that counsel should have filed certain pretrial motions, and that counsel should have
investigated his case further. Thus, Petitioner’s own allegations belie his contention that the
factual predicate for his claim of actual innocence was not known until September 2011.
Petitioner made similar statements in his MAR showing that he knew about the factual predicate
for his claim of actual innocence before his guilty plea. See (Doc. No. 8-3 at 14-15).
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Petitioner contends that the evidence he allegedly recently discovered is evidence of actual
innocence. He suggests that the one-year limitations period simply does not apply in cases of
actual innocence. The Fourth Circuit has not yet addressed whether a claim of actual innocence
may equitably toll the AEDPA one-year limitations period. Even if the Fourth Circuit were to
recognize such equitable tolling based on actual innocence, Petitioner’s allegations are
insufficient to qualify him for that exception. Circuits that have adopted an actual innocence
exception to the AEDPA one-year limitations period have required that a petitioner’s newly
discovered evidence of actual innocence be credible, meaning the evidence must be “‘new
reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence--that was not presented at trial.’” Souter v. Jones, 395 F.
3d 577, 590 (6th Cir. 2005) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Moreover,
“‘actual innocence means factual innocence, not mere legal insufficiency.’” Souter, 395 F.3d at
590 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). Finally, the actual innocence
exception is “rare” and should “only be applied in the ‘extraordinary case.’” Schlup, 513 U.S. at
321.
Petitioner fails to meet the high standard of actual innocence because the evidence to
which Petitioner refers does not establish his innocence. As Respondent notes, the statements by
the victim’s wife are at best impeachment evidence. Moreover, that Petitioner’s gunshot residue
test was negative and that he did not own a gun that fired the particular caliber bullet found in
the victim does not establish that “it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.” Id. at 327. Thus, even if the Court were to
conclude that rare and exceptional claims of actual innocence can toll the AEDPA’s statute of
limitations, this is not one of those rare cases in which a petitioner is entitled to equitable tolling.
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In sum, for the reasons stated herein, Petitioner’s § 2254 petition is time-barred, and
equitable tolling is not warranted. Accordingly, the Court will dismiss the § 2254 petition.
IV.
CONCLUSION
IT IS, THEREFORE, ORDERED that:
(1)
Respondent’s Motion for Summary Judgment, (Doc. No. 6), is GRANTED and
the petition is DISMISSED as time-barred.
(2)
Petitioner’s (1) Motion Request to the Court to Review 08 Statement by
Alexander County Sheriff’s Department, (Doc. No. 17); (2) Motion Requesting
the Court to Review Petitioner’s Claim 2 Presented in His MAR and Claim 3 of
5:12cv49 Habeas Petition, (Doc. No. 18); and (3) Motion to Review Claim 4 of
Petitioner’s MAR and Claim 4 of Habeas Petition 5:12cv49 Concerning Due
Process, (Doc. No. 20), are all DENIED as moot.
(3)
It is further ordered that, pursuant to Rule 11(a) of the Rules Governing Section
2254 and Section 2255 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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Signed: November 20, 2012
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