Reed v. Hooks
Filing
2
ORDER DISMISSING CASE as untimely. Court declines to issue a Certificate of Appealability. Signed by Chief Judge Frank D. Whitney on 6/5/2017. (Pro se litigant served by US Mail.) (tmg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17cv87-FDW
MICHAEL EUGENE REED, II,
)
)
Petitioner,
)
)
vs.
)
)
ERIK A. HOOKS,
)
)
Respondent.
)
____________________________________)
ORDER
THIS MATTER is before the Court upon Petitioner Michael Eugene Reed’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 was tried capitally before a
Catawba County Superior Court jury in March 1999. The North Carolina Court of Appeals
summarized the evidence presented by the State:
On 20 June 1997, Norah Pope (“Pope”) called the Catawba County Sheriff's
Department to report a domestic dispute with defendant, her boyfriend. Two
deputies responded to Pope's home, and on their advice, Pope swore out four
misdemeanor arrest warrants on defendant, including for assault on a female and
communicating a threat. The Sheriff's Department last had contact with Pope at
about 10 p.m. Lorri Penly, a friend and co-worker of Pope, testified that she spoke
with Pope on the phone at 10 p.m. and offered to come to her home. Pope declined,
telling Penly that a friend was staying with her.
A few hours later, at 2:48 a.m., sheriff's deputies arrested defendant at his home
pursuant to the warrants. At that time, one of the officers tried to contact Pope to
notify her that defendant was in custody, but Pope's phone line was busy. Later
that morning, Griff Holston, the husband of Suzie Holston (“Holston”), another
friend and co-worker of Pope, drove past their workplace, but did not see his wife's
car. Mr. Holston then drove by Pope's home and saw the car in the driveway, but
got no answer when he rang the doorbell. Neither woman appeared at work as
scheduled.
1
Shortly thereafter, deputies from the sheriff's department entered the home, and
discovered the bodies of Norah Pope and Suzie Holston. Dr. James Parker, a
pathologist who performed the autopsies on both women, testified that they were
killed in their sleep by gunshots to the head. The officers saw no signs of forced
entry to Pope's home, but discovered that the telephone line had been cut.
When sheriff's department Captain Coy Reid (“Capt. Reid”) discovered that
defendant was in custody, he brought defendant to an interrogation room and
informed him of his Miranda rights. Defendant waived his rights to remain silent
and to have an attorney present during the interrogation. The interrogation lasted
approximately one hour and nineteen minutes. Defendant told Capt. Reid that “he
had been in a bad car wreck and it caused damage to his brain.” Defendant also
said that he should be punished for what he had done, but that it was not first degree
murder. Defendant also said that when his father arrived, he would tell Reid
everything. Defendant consented to a search of his home and car, and the interview
ended.
Later that afternoon, Capt. Reid and a sheriff's department detective interviewed
defendant a second time. Defendant waived his rights again and repeated that he
would tell everything once his father arrived. Defendant also made several
inculpatory statements, although he did not confess to the murders. This second
interview lasted approximately fifty minutes.
Tommy Boyette testified for the State that defendant spoke to him while both were
in jail awaiting trial. According to Boyette defendant told him how he cut Pope's
phone line, entered the home, hid in a closet until Pope and Holston came home,
and then shot the two women. Before trial, defendant moved to suppress his
statements to Reid and to Boyette. At a hearing on the motions, the interviewing
officers and Boyette testifed, as did Dr. Richard Lanham, a clinical
neuropsychologist. Dr. Lanham testified concerning defendant's alleged brain
injury, establishing that defendant suffered a severe brain injury as a result of a high
speed car crash in December 1996. Dr. Lanham further testified that the effects of
that injury could have persisted until the time of the murders, and could have
affected defendant's ability to knowingly waive his rights and the voluntariness of
his statements. The court made findings of fact and concluded that defendant's
constitutional rights had not been violated and that his statements to officers and to
Boyette had been made voluntarily, knowingly and intelligently. The court then
denied the motion to suppress.
State v. Reed, 590 S.E.2d 477, 2004 WL 77759, at *1-*2 (N.C. Ct. App. 2004) (unpublished)
(Reed III).
The jury found Petitioner guilty of one count of first-degree murder by lying in wait and
2
one count of first-degree murder on the basis of malice, premeditation and deliberation. After a
capital sentencing proceeding, the jury recommended life imprisonment on both counts. The
trial court sentenced defendant to two consecutive terms of life imprisonment without parole.
State v. Reed, 558 S.E.2d 167, 169 (N.C. 2002) (“Reed II”).
Petitioner appealed to the North Carolina Court of Appeals, and on April 17, 2001, a
unanimous panel of that court concluded the trial court's failure to allow a defense challenge for
cause to a prospective juror was prejudicial error and ordered a new trial. State v. Reed, 545 S.E.
2d 249 (N.C. Ct. App. 2001) (“Reed I”). The North Carolina Supreme Court granted the State’s
petition for discretionary review (“PDR”) and, on February 1, 2002, reversed the Court of
Appeals’ decision. Reed II, 558 S.E. 2d at 174.
The matter subsequently was remanded for the Court of Appeals to rule on the issues
raised in Petitioner’s appeal that it had not addressed in its 2001 decision. See Reed III, 590
S.E.2d. at *1. The court issued an opinion on January 20, 2004, finding no error. Id. at * 7.
Petitioner sought review in the North Carolina Supreme Court, which was denied on April 1,
2004. State v. Reed, No. 232P01-2, 596 S.E.2d 16 (N.C. 2004) (Mem) (“Reed IV”).
On December 7, 2016, Petitioner filed a Motion for Appropriate Relief (“MAR”) in the
Catawba County Superior Court. (Habeas Pet. 3, Doc. No. 1.) It was denied on December 19,
2016. (Pet. 3.) On February 10, 2017, the North Carolina Court of Appeals denied Petitioner’s
petition for writ of certiorari seeking review of the trial court’s order denying his MAR. (Pet. 34.) Petitioner next filed a PDR in the North Carolina Supreme Court, which was dismissed on
May 3, 2017. (Order Den. PDR 29, Doc. No. 1-2.)
Petitioner filed the instant § 2254 habeas Petition on May 23, 2017, when he deposited it
in the prison mail system. (Pet. 14.) Petitioner claims trial counsel were ineffective for failing
3
to: 1) call alibi witnesses to testify during the guilt phase; 2) inform him that prosecutors had
interviewed the alibi witnesses; 3) inform him that the alibi witnesses provided defense counsel
with exculpatory evidence, which counsel subsequently lost; and 4) present readily available
exculpatory evidence at trial. (Pet’r’s Att. 2-3, Doc. No. 1-2.) Petitioner also claims the trial
court erred in denying two of his challenges for cause during jury selection, refusing to restore
his peremptory challenges, and refusing to dismiss the entire jury panel when it was exposed to
prejudicial information during voir dire. (Pet. 6-7; Pet’r’s Att. 5.) Additionally, Petitioner
claims the prosecution engaged in misconduct (Pet’r’s Att. 3-4); his appellate counsel had a
conflict of interest because he belonged to the same law firm as one of Petitioner’s trial attorneys
(Pet. 10); the trial court erred in denying Petitioner’s motion to suppress his pretrial statements to
police (Pet’r’s Att. 5-7); and the trial court abused its discretion under N.C. Gen. Stat. § 15A1233(a) (Pet’r’s Att. 7).
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
4
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).
Petitioner’s judgments became final on or about June 30, 2004, 90 days after the North
Carolina Supreme Court denied review, see Reed IV, of the Court of Appeals’ second decision
on Petitioner’s direct appeal, see Reed III, and the time for Petitioner to file a petition for writ of
certiorari in the United States Supreme Court expired. Clay v. U.S., 537 U.S. 522, 527 (2003);
Sup. Ct. R. 13.1 (setting 90-day time limit for filing a petition for writ of certiorari). The statute
of limitations then ran for 365 days until it fully expired on or about June 30, 2005. None of
Petitioner’s filings in the state courts after that date served to resurrect or restart the federal
statute of limitations. 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). Therefore, absent equitable tolling or applicability of § 2244(d)(1)(B), (C), or (D), the §
2254 Petition is untimely. See § 2244(d)(1)(A).
Petitioner provides two explanations for the untimeliness of his habeas Petition. (Pet’r’s
5
Att. 8-11.) First, Petitioner asserts that he discovered after trial that his two alibi witnesses,
Lloyd and Teresa Duncan, had provided exculpatory evidence to his trial attorneys that would
have shown Petitioner could not have driven to Pope’s house, committed the murders, and
returned home within the time frame the State claimed the murders occurred. (Pet’r’s Att. 2, 8.)
Attached to the habeas Petition is an affidavit of Lloyd Duncan that describes his interactions
with Petitioner and Burke County sheriff’s deputies on the night of the murders. (Duncan Aff.
97-99, Doc. No. 1-2.) It also describes a videotape he and Petitioner’s ex-wife, with whom
Petitioner apparently remained on good terms, made after the murders and gave to Petitioner’s
trial attorneys, which showed the amount of time it took them to drive from Petitioner’s house to
the murder scene and back. (Duncan Aff. 98-99.)
Under § 2244(d)(1)(D), the statute of limitations runs from the date on which the factual
predicate of the claim or claims presented could have been discovered through the exercise of
due diligence. Duncan’s affidavit was notarized on July 25, 2004. Thus, the latest date
Petitioner could have discovered the factual predicate for any claims related to his alibi witnesses
and the videotape was July 25, 2004. The statute of limitations ran for 365 days from that date
until it fully expired on or about July 25, 2005. As such, the Petition is untimely under §
2244(d)(1)(D), as well.
In McQuiggin v. Perkins, however, the Supreme Court recognized a “miscarriage of
justice” exception to § 2244(d)(1)(D). 133 S. Ct. 1924, 1928 (2013). 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. Id. 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
6
(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 information contained in Lloyd Duncan’s affidavit does not constitute “credible
evidence” that Petitioner is actually innocent of the first-degree murders of Pope and Holston.
The videotape described in the affidavit purports to show that it took Duncan and Petitioner’s exwife an hour to drive from Petitioner’s house to Pope’s house and back. (Pet. Att. 98-99.)
According to Petitioner, this evidence proves he could not have driven to and from Pope’s house
and committed the murders in the time the State claimed. Petitioner, however, does not reveal
the timeline the State relied upon at trial. Furthermore, the reliability of the videotape is suspect
because it was made by people close to Petitioner, and nothing indicates that they conducted
their driving experiment at the same time of night, under the same conditions, going the same
speed, and taking the same route Petitioner was alleged to have taken. In short, Petitioner has
not made a credible showing of actual innocence. See McQuiggin, 133 S. Ct. at 1931.
Next, Petitioner attributes some delay in filing his § 2254 Petition to his efforts to obtain
legal assistance in filing for state post-conviction relief. Initially, according to Petitioner, he
relied on his appellate attorney’s post-appeal assurances that he was going to file “other motions”
on Petitioner’s behalf “at a later time.” (Pet. Att. 9.) Petitioner does not indicate when he
realized his appellate attorney was not going to follow through, but he states that his family then
hired a lawyer to file an MAR for him. The attorney, according to Petitioner, took his family’s
money, demanded more money, refused to answer Petitioner’s letters or his family’s phone calls,
7
and produced no work product. (Pet. Att. 9-10.) After three and a half years, Petitioner wrote
the North Carolina State Bar but was unsuccessful in getting the Bar to take action against the
attorney. Petitioner then “looked at law books,” “fil[ed] some papers” and obtained an
arbitration hearing with the attorney. (Pet. Att. 10.)
Equitable tolling of the statute of limitations 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).
Petitioner’s explanation demonstrates neither diligence in pursuing his rights nor that
some extraordinary circumstance stood in his way and prevented timely filing of a federal habeas
petition. Petitioner’s judgment became final in the summer of 2004, but he did not file his pro se
MAR until December 2016. Assuming he spent up to four years attempting to obtain
professional legal assistance in filing an MAR, Petitioner has not accounted for the remaining
eight and half years. Furthermore, the steps Petitioner took to seek a civil remedy against the
post-conviction attorney indicate he was capable of filing a pro se MAR long before 2016.
Additionally, an attorney’s ineffectiveness is not considered an “extraordinary
circumstance” external to a prisoner’s own conduct. See, e.g., Lawrence v. Florida, 549 U.S.
327, 336-37 (2007) (holding attorney miscalculation of deadline is not sufficient to warrant
equitable tolling); United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (holding that
8
ignorance of the law is not a basis for equitable tolling in the case of an unrepresented prisoner).
In sum, Petitioner has provided no explanation that justifies equitably tolling the statute of
limitations for eleven plus years.
IV.
CONCLUSION
Petitioner’s § 2254 Petition for Writ of Habeas Corpus is untimely under 28 U.S.C. §§
2244(d)(1)(A) and (D), and he has not demonstrated entitlement to equitable tolling of the statute
of limitations. Accordingly, his § 2254 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).
Signed: June 5, 2017
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?