Opinion
1:00CV137
January 17, 2001
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. However, respondent has filed a preliminary motion to dismiss the case prior to reaching the merits on the ground that the petition was filed one day after the expiration of the statute of limitations.
Petitioner was convicted in 1992 of first-degree murder based on the theory of premeditation and deliberation, as well as on the theory of felony murder. He was also found guilty of robbery with a dangerous weapon, and the first-degree attempted rape of the victim, Hazel Colleen Broadway. Petitioner was given the death penalty for the murder, 40 years imprisonment for the armed robbery, and 20 years imprisonment for the attempted rape. His conviction was affirmed on appeal by the North Carolina Supreme Court in State v. Rouse. 339 N.C. 59, 451 S.E.2d 543 (1994). He petitioned the United States Supreme Court for a writ of certiorari, but this was denied on October 2, 1995.
Petitioner filed a motion for appropriate relief in state court on April 19, 1996. The motion was denied on October 2, 1996 and shortly thereafter, petitioner filed an amended motion for appropriate relief on October 10, 1996. The North Carolina Supreme Court granted review and remanded the matter for reconsideration. On remand, the lower court affirmed its denial of the motion for appropriate relief. Petitioner then filed a subsequent request for certiorari review, which was denied by an order of the North Carolina Supreme Court on February 4, 1999, which order was filed or entered on February 5, 1999. Petitioner then filed a petition for a writ of habeas corpus in this Court on February 8, 2000.
A few days later, the Antiterrorism and Effective Death Penalty Act of 1996 became effective on April 24, 1996, which made some significant changes to federal post-conviction relief procedures, including 28 U.S.C. § 2244(d), which imposed a one-year federal statute of limitations for state court prisoners seeking a writ of habeas corpus in federal court.
Respondent has filed a motion to dismiss on the ground that petitioner's writ of habeas corpus is barred by the one-year limitation period contained in 28 U.S.C. § 2244(d) which contains both a limitation period in subsection (d)(1) and a tolling provision in subsection (d)(2). It reads in pertinent part:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from 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;
. . .
(2) The time during which a properly filed application for State post-convict ion or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Respondent shows that petitioner's conviction became final in 1995 when the Supreme Court denied review. While petitioner's state motion for appropriate relief petition was pending, Congress enacted the Antiterrorism and Effective Death Penalty Act (see n.l) which established a one-year statute of limitation for petitioners to file a Section 2254 habeas corpus petition in this Court. Respondent does agree that the limitation period was stayed when the state post-conviction proceedings were pending in state court. But, he contends that the automatic stay ended on February 5, 1999. Respondent then calculates the time within which petitioner had to file his federal petition in this Court to be February 5, 2000, which being a Saturday, meant that petitioner had until February 7, 2000 to file the petition. See Fed.R.Civ.P. 6(a). Therefore, the petition filed on February 8, 2000 was one day late and respondent requests that this action be dismissed.
Because of the nature of the motion to dismiss, counsel who filed the petition understandably requested and were relieved of representation. Other counsel were appointed. These counsel have filed a brief in opposition to respondent's motion to dismiss. There, petitioner makes a number of contentions in support of his argument that the petition was, in fact, timely filed. Alternatively, he argues that if not timely filed, then the Court should apply the doctrine of equitable tolling so that the petition is deemed timely filed.
Petitioner's brief violates the page limits of Local Rule 7.3.
Discussion
Petitioner's first argument is that the North Carolina Supreme Court order of February 5, 1999 denying his petition for a writ of certiorari, in fact, "was not finally entered until 25 February 1999." (Petitioner's brief at 7 [emphasis added]) This argument attempts to draw some support from both subsection (d)(1) and (d)(2) of Section 2244 and, arguably, commingles concepts between them. Petitioner essentially contends that the "finality" of the North Carolina Supreme Court's order denying certiorari should be determined in the same manner as determining the finality of a judgment after the conclusion of direct review. Therefore, petitioner argues that the North Carolina Supreme Court's February 5, 1999 order did not become final until twenty days after the order was filed with the clerk, pursuant to N.C. R. App. P. 32 which provides:
Section 2244(d)(1) concerns itself with the start date of the running of the limitation period by determining the "finality" of a conviction on direct review, whereas subsection (d)(2) is concerned with the tolling of the statute of limitation period as a result of a properly filed state post-conviction motion. Consequently, subsection (d)(1) takes into account the time for filing a petition for writ of certiorari to the United States Supreme Court, whereas for subsection (d)(2), such time is not included in the tolling calculation. Ott v. Johnson. 192 F.3d 510 (5th Cir. 1999), cert, denied. ___ U.S. ___, 120 So. Ct. 1834, 146 L.Ed.2d 777 (2000). The concept of finality pertinent to subsection (d)(1) does not translate directly over to subsection (d) (2).
Rule 32. Mandates of the courts.
(a) In general. Unless a court of the appellate division directs that a formal mandate shall issue, the mandate of the court consists of certified copies of its judgment and of its opinion any direction of its clerk as to costs. The mandate is issued by its transmittal from the clerk of the issuing court to the clerk or comparable officer of the tribunal from which appeal was taken to the issuing court.
(b) Time of issuance. Unless a court orders otherwise, its clerk shall enter judgment and issue the mandate of the court 20 days after the written opinion of the court has been filed with the Clerk.
Petitioner reads N.C. R. App. P. 32 as applying to the February 5, 1999 order of the North Carolina Supreme Court denying a petition for certiorari. However, it is not at all clear that Rule 32, which governs "mandates" of the court, governs denials of certiorari. Notwithstanding, petitioner relies on N.C. R. App. P. 32 to argue that the February 5, 1999 order was not final until twenty days after the filing of the opinion by the clerk.
There being no direct authority under North Carolina law for the proposition, petitioner cites Washington v. Lindsey, 217 F.3d 848, 2000 WL 553454 (9th Cir. May 4, 2000) (Table, Text in Westlaw, No. 99-55149), for support. That case implemented the tolling provisions of 28 U.S.C. § 2244(d)(2) by applying California appellate court rules to determine the tolling period. In that case, the Ninth Circuit held that the one-year limitation period did not begin to run until thirty days after the California Supreme Court entered an order denying the petitioner's request for review of a post-conviction order. Petitioner requests this Court to hold that N.C. R. App. P. 32 imposes the same delayed finality to the February 5, 1999 order.
Rather than supporting petitioner's case, upon closer examination ofWashington, it is concluded that the case erodes petitioner's contention. In Washington, the rule relied upon, Cal. Ct. Rule 24(a), explicitly provides that "[a] decision of the [California] Supreme Court becomes final 30 days after filing unless the court orders a shorter time. . . ." The rule is extremely broad because it covers not just judgments or orders, but "decisions." The North Carolina rule, on the other hand, speaks in terms of judgments and mandates. In short, there is nothing in N.C. R. App. P. 32 which makes it comparable to the California rule.
In addition to the difference in language between the California and the North Carolina rules, respondent shows that the Clerk of the North Carolina Supreme Court does not issue mandates twenty days after a petition for a writ of certiorari is denied. The order in the instant case is an example of this. It is the only paper issued upon the North Carolina Supreme Court's denial of certiorari, and is merely in the form of an order. This is, perhaps, the strongest argument in favor of respondent's position that the decision by the North Carolina Supreme Court to deny post-conviction review on February 5, 1999 ended the North Carolina post-conviction process and also ended the tolling provisions of 28 U.S.C. § 2244(d)(2). Petitioner's reading of N.C. R. App. P. 32 should be rejected.
Next, petitioner argues that N.C. R. App. P. 31 applies and, therefore, the February 5, 1999 order was not final on the 5th because under Rule 31, petitioner had fifteen days to file a petition for rehearing. In that regard, petitioner further argues that this Court should treat a post-conviction motion in state court as a civil action. Petitioner must necessarily make this last contention because N.C. R. App. P. 31(g) provides that there will be no petition for rehearing in criminal cases.
Again, there are several problems with petitioner's argument. First, N.C. R. App. P. 31(a) provides that: "A petition for rehearing may be filed in a civil action within 15 days after the mandate of the court has been issued." (emphasis added) There is no reason to conclude that this provision covers denials of petitions for writs of certiorari by the North Carolina Supreme Court because in cases like the instant one, no mandate, in fact, issues. Rather, the court clerk merely enters an order on the court's decision.
The second reason for rejecting petitioner's argument as to N.C. R. App. P. 31(a) is that a North Carolina post-conviction proceeding is not a civil proceeding and, therefore, is not governed by rules governing civil proceedings. Petitioner cites 28 U.S.C. § 2254 and theRules Governing Cases Under Section 2254. Rule 11, as showing that in federal court, post-conviction motions are treated as civil proceedings. However, the correct analogy would be with respect to how the federal courts treat their own post-conviction proceedings under 28 U.S.C. § 2255. Such motions are a continuing part of the criminal case. Williams v. United States. 984 F.2d 28, 30 (2d Cir. 1993); Stantini v. United States. 986 F. Supp. 736, 738-39 (E.D.N.Y. 1997). See Unites States v. Simmonds, 111 F.3d 737, 742 n. 7 (10th Cir. 1997).
Respondent shows that North Carolina treats its post-conviction proceedings as part of the original criminal proceeding, as do the federal courts. Under North Carolina law, a post-conviction motion is "a motion in the original cause and not a new proceeding." N.C.G.S. § 15A-1411(b). Therefore, N.C. R. App. P. 31(g) applies and petitioner had no right to file a motion for rehearing.
In addition, even if petitioner had a right to file for rehearing, he did not make such a motion, which would have extended any time limit. Therefore, even in such a hypothetical situation, it is not unreasonable to conclude that the effective date of the order remained February 5, 1999. See generally United States v. Torres, 211 F.3d 836 (4th Cir. 2000) (when a federal prisoner does not file a petition for a writ of certiorari to the United States Supreme Court, his judgment of conviction becomes final the date the court of appeals mandate issues).
Petitioner next argues that he should be permitted three extra days for filing his petition because his attorneys received the decision of the North Carolina Supreme Court via the mail. In this argument, petitioner claims that the Court should use Fed.R.Civ.P. 6(e) to give him three extra days for filing his petition for a writ of habeas corpus in this Court. This argument stretches the use of Rule 6 too far. It is true that in computing the limitations period under Section 2244, the Court may use Fed.R.Civ.P. 6(a). Hernandez v. Caldwell. 225 F.3d 435, 439 (4th Cir. 2000). That rule talks about excluding Saturdays and Sundays, as well as when to begin and end the count. In fact, respondent recognizes this by excluding the weekend days of February 5 and 6, 2000 and asserting that February 7, 2000, a Monday, was the last day on which petitioner had to file his petition for writ of habeas corpus.
Again, there are several reasons to reject petitioner's argument that Rule 6(e) applies. First, in a decision directly on point, the court inGeraci v. Senkowski, 23 F. Supp.2d 246, 252 (E.D.N.Y. 1998),aff'd, 211 F.3d 6 (2d Cir.)/ cert, denied, U.S., 121 S.Ct. 581, L.Ed.2d (2000), rejected this very same argument in regard to Section 2244(d)(2) and Rule 6(e). It found that tolling stopped under Section 2244(d)(2) when the state case was no longer "pending" and not when the attorney received notice and, therefore, the extension of time periods created by Rule 6(e) was irrelevant and inapplicable.
A more basic reason for rejecting petitioner's argument of using Rule 6(e) is that the rule applies to a party and, therefore, is applicable only after a party initiates a lawsuit. Clay v. United States, 199 F.3d 876, 880 (6th Cir. 1999). In the instant case, this occurred only after petitioner applied for habeas corpus relief in this Court. Therefore, petitioner cannot use Rule 6(e) to obtain extra time because the February 5th order of the North Carolina Supreme Court was not part of the proceedings in this Court. And, even if that order could be tied to the "yet-to-be filed action" in this Court, Rule 6(e) still would not apply because that rule does not apply to the entry of final judgments. Kyle v. Campbell SOUP Co. 28 F.3d 928 (9th Cir.), cert, denied, 513 U.S. 867, 115 S.Ct. 185, 130 L.Ed.2d 119 (1994) (attorney mistake in using Rule 6(e) to add three days to the time for filing a motion did not constitute excusable neglect). For all these reasons, petitioner's attempt to apply Fed.R.Civ.P. 6(e) to extend the one-year tolling period of Section 2244(d)(2) should be rejected.
Petitioner's final argument is that the Court should apply equitable tolling. The Fourth Circuit, as well as a number of courts have held that the one-year limitation period is subject to equitable tolling.Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000);Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999), reh'g and suggestion for reh'g en bane denied, 207 F.3d 666 (11th Cir. 2000) (collecting cases). Equitable tolling may apply when the defendant has been unable to assert claims because of wrongful conduct of the state or its officers. A second exception is when there are extraordinary circumstances, such as events which were both beyond the prisoner's control and unavoidable even with due diligence.Harris, supra; Akins v. United States, 204 F.3d 1086 (11th Cir.), reh'g and reh'g en bane denied, 220 F.3d 594 (11th Cir.), and cert. denied. U.S., 121 S.Ct. 410, L.Ed, 2d (2000). Circumstances beyond a prisoner's control occur if he has been prevented in some extraordinary way from exercising his rights. See Smith v. McGinnis. 208 F.3d 13 (2d Cir.), cert, denied, U.S., 121 S.Ct. 104, 148 L.Ed.2d 63 (2000). This might occur where a prisoner is actively misled or otherwise prevented in some extraordinary way from exercising his rights. Coleman v. Johnson. 184 F.3d 398, 402 (5th Cir.), reh'g and reh'g en bane denied, 196 F.3d 1259 (5th Cir. 1999), and cert. denied. 528 U.S. 1007, 120 S.Ct. 1564, 146 L.Ed.2d 467 (2000).
On the other hand, unfamiliarity with the legal process, lack of representation, or illiteracy does not constitute grounds for equitable tolling. Harris, supra; Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert, denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 389 (1999). Likewise, mistake of counsel does not serve as a ground for equitable tolling. United States v. Marcello, 212 F.3d 1005, (7th Cir.), cert, denied, U.S., 121 S.Ct. 188,
L.Ed.2d (2000) (no tolling when petition filed one day late);Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999);Sandvik, 177 F.3d 1269. Nor are prison conditions, such as lockdowns or misplacement of legal papers normally grounds for equitable tolling. Akins, 204 F.3d 1086. Finally, in order to show diligence, the prisoner must show diligence not merely at the federal level, but throughout the entire post-conviction process in order to have equitable tolling available to him. Coleman, 184 F.3d at 402.
Petitioner admits that there is no evidence of any wrongful conduct on the part of the State which would justify equitable tolling. Therefore, he claims (as he must) that he meets the second exception of extraordinary circumstances, such as where there are events which were both beyond the prisoner's control and unavoidable. The ground that he relies on is the alleged conduct of his two attorneys, Grady Jessup and Tracy Barley. Petitioner now claims that they violated the North Carolina Revised Rules of Professional Conduct, which conduct was not condoned by him, and was unknown to him until it was too late.
The conduct in question is the late filing of a petition. Petitioner now wants to paint a portrait of counsel squandering an entire year in preparing a petition while he had absolutely no input or part in the decision. Unfortunately, there is no evidence of this. Petitioner does present evidence, but none of it comes from him; and the evidence that he does present, does not mention the role that he played in the process.
Petitioner offers the affidavit of Gretchen M. Engel, a staff attorney for the Center for Death Penalty Litigation in North Carolina. Ms. Engel met with Mr. Jessup on February 24, 1999 in order to consult about the preparation of the federal habeas corpus petition. She advised him that there was a one year statute of limitation and that the petition should be filed seven or eight months after the North Carolina Supreme Court's order of February 5, 1999 and at the latest, within one year of that date. (There is no indication that she advised him to file the petition immediately.) In addition, both of petitioner's former counsel filed affidavits indicating that they relied upon both Fed.R.Civ.P. 6(a) and 6(e), concluding that the petition would be timely filed if filed on or before February 8, 2000.
This uncertainty resulted because of the pendency of Taylor v. Lee, 186 F.3d 557 (4th Cir. 1999), cert, denied. U.S., 120 S.Ct. 1262, 146 L.Ed.2d 117 (2000) , which involved the proper way to apply the tolling provisions of the one-year statute of limitation of Section 2244(d) to North Carolina post-conviction procedures.
Noticeably missing from any of the affidavits is any indication concerning discussions with petitioner concerning these matters. Normally, petitioners are quite eager to have their post-conviction petitions filed as early as possible in order to assert their claims of innocence and violations of their rights. However, in a death penalty case, the opposite appears to be true. Because of the ultimate penalty, petitioners, and often their attorneys, file matters at the last possible moment in hopes of avoiding the ultimate punishment for as long as possible. That strategy, however, does involve the petitioners and not just counsel. It is a strategic choice, but one not without risk, as is apparent in this case. Here, the risk came to fruition because of a miscalculation by counsel. In another case it could be a weather event which delays the filing. Prudence dictates that the more important the opportunity, the greater margin of safety will be factored into the timing of actions to obtain the opportunity. See United States v. Marcello, 212 F.3d at 1010 (in case of uncertainty, the petition should be filed at the earliest possible moment, not the latest).
There is nothing in this case that indicates that petitioner told his attorneys to file the petition in this Court as soon as possible after the North Carolina Supreme Court rendered its decision. Instead, the silence in the record indicates that petitioner agreed, or perhaps required the attorneys, to wait to file the petition for as long as possible. Therefore, there is no evidence that the attorneys acted contrary to petitioner's wishes in contravention of their obligations of professional duties. In fact, the only criticism which can be made of the attorneys is that in ostensibly carrying out petitioner's wishes of delaying matters as long as possible, they made a slight miscalculation by relying on Fed.R.Civ.P. 6(e). This error was not a knowing or reckless disregard of an attorney's obligation as petitioner now contends. The extant case law does not provide for equitable tolling in such an instance.
Petitioner's second reason for employing equitable tolling is his alleged mental impairment during the past year. In that regard, petitioner previously filed a motion for the Court to appoint a neurologist to review his medical records to determine whether his condition from February 5, 1999 through February 5, 2000 significantly impeded his ability to keep up with the status of the case and communicate with counsel. The Court denied the request in an order filed August 24, 2000. The motion was denied for a number of reasons, but basically, because there simply was not sufficient evidence to indicate that petitioner was any way incompetent for a substantial part of the period in question. Therefore, this asserted ground for equitable tolling should be rejected as well.
IT IS THEREFORE RECOMMENDED that respondent's motion to dismiss this action for being filed after the expiration of the one-year limitation period contained in 28 U.S.C. § 2244(d)(1) be granted, and that this action be dismissed.