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France v. Perry

United States District Court, M.D. North Carolina

May 7, 2015

CLOREY EUGENE FRANCE, Petitioner,
v.
FRANK L. PERRY, [1] Respondent.

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L. PATRICK AULD, Magistrate Judge.

Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 2.) On March 30, 2011, in the Superior Court of Cabarrus County, a jury found Petitioner guilty of felonious breaking or entering, breaking or entering a motor vehicle, attempted first degree burglary, possession of housebreaking implements, misdemeanor possession of stolen goods, and obtaining habitual felon status, in cases 09 CRS 052770 and 052771. (Docket Entry 2, ¶¶ 1, 2, 4-6; see also Docket Entry 9-2 at 178-82.)[2] The trial court sentenced Petitioner in the presumptive range as an habitual felon to four consecutive terms of 116 to 149 months' imprisonment. (Docket Entry 2, ¶ 3; see also Docket Entry 9-2 at 183-90.)

With the aid of appellate counsel, Petitioner appealed his convictions (Docket Entry 2, ¶¶ 8, 9(a)-(f); see also Docket Entries 9-2, 9-3, 9-4, 9-5), and the North Carolina Court of Appeals found no error as to Petitioner's convictions for felonious breaking or entering, breaking or entering a motor vehicle, and attempted first degree burglary, but vacated his convictions for possession of housebreaking implements and misdemeanor possession of stolen goods, State v. France, 222 N.C.App. 635 (table), 731 S.E.2d 274 (table), No. COA12-50, 2012 WL 3573920 (Aug. 21, 2012) (unpublished). Petitioner did not thereafter submit a certiorari petition to the North Carolina Supreme Court. (See Docket Entry 2, ¶ 9(g).)

Petitioner then filed a motion for appropriate relief ("MAR") with the state trial court (Docket Entry 2, ¶ 11(a)(1)-(6); see also Docket Entry 9-14), which that court denied (Docket Entry 2, ¶ 11(a)(7), (8); see also Docket Entry 9-11). Petitioner sought review of his MAR's denial by filing a certiorari petition in the North Carolina Court of Appeals (Docket Entry 2, ¶ 11(b)(1)-(6); see also Docket Entry 9-12), which that court denied (Docket Entry 2, ¶ 11(b)(7), (8); see also Docket Entry 9-13).

Petitioner subsequently submitted his instant Petition to this Court. (Docket Entry 2.) Respondent moved for summary judgment on the merits (Docket Entry 8) and Petitioner responded in opposition (Docket Entry 11), and also filed a "Motion for Leave to Expand the Record" (Docket Entry 12), "Motion for Leave to Invoke Discovery" (Docket Entry 13), "Motion for Evidentiary Hearing and for Appointment of Counsel" (Docket Entry 14), "Request for Order for Production of Documents" (Docket Entry 15), "Motion for Mandamus" (Docket Entry 16), "Petitioner's Request for Leave to Amend" (Docket Entry 22), "Petitioner's Request for Leave for Modification of the Record" (Docket Entry 28), "Petitioner's Motion for Court Order for the Release of Documents" (Docket Entry 29), "Petitioner's Motion for Leave to Amend and Proposed Amendment" (Docket Entry 35), and "Motion for Leave to File Supplemental Citations, Authorities and Supplemental Memorandum" (Docket Entry 36).

In previous orders, the undersigned denied Petitioner's "Motion for Mandamus" (see Docket Entry 17 (denying Docket Entry 16)), [3] denied as moot "Petitioner's Motion for Court Order for the Release of Documents" (see first Text Order dated Mar. 31, 2015 (denying Docket Entry 29)), and granted "Petitioner's Request for Leave for Modification of the Record" (see second Text Order dated Mar. 31, 2015 (granting Docket Entry 28)), the last of which permitted Petitioner to supplement the record in the instant case with a copy of the trial court transcript from a hearing on August 26, 2010, on Petitioner's motions to quash, for bond reduction and to suppress (see Docket Entry 28 at 4-61). Additionally, the undersigned denied in part, found moot in part, and granted in part Petitioner's "Motion for Leave to File Supplemental Citations, Authorities and Supplemental Memorandum" (Docket Entry 36), and struck as unauthorized Petitioner's "Supplemental Memorandum" (Docket Entry 37). (See third Text Order dated Mar. 31, 2015.)[4]

Motion for Leave to Expand the Record

Petitioner seeks to expand the record under Rule 7 of the Rules Governing Section 2254 Cases by inclusion of the following materials: (1) reporting officer narrative ("Narrative") (see Docket Entry 11 at 41-42); (2) photocopy of a hand print lifted by Cabarrus County Sheriff's Detective Mitch Queen (see id. at 43-44); (3) notes from interview of Cabarrus County Sheriff's Deputy Eugene Roberts (see id. at 45); (4) notes from interview of victim Michelle Furr (see id. at 66); (5) investigative file report (see id. at 46-47); (6) felony case summary (see id. at 48); (7) transcript of officers' radio transmissions (see id. at 56-64); (8) certificate of request for and delivery of August 26, 2010, pre-trial hearings transcripts (see id. at 65); (9) transcript of victim Michelle Furr's 911 call (see id. at 49-55); (10) victim Darren Furr's statement to Detective Queen (see id. at 67-73); and (11) attorney/client correspondence from April 1, 2011, through July 21, 2012 (see, e.g., Docket Entry 2-3 at 9-10). (Docket Entry 12 at 1-2.) For the reasons that follow, the undersigned will deny Petitioner's Motion for Leave to Expand the Record.

Rule 7 of the Rules Governing Section 2254 Cases provides that, "[i]f the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition." When a petitioner seeks to introduce evidence pursuant to Rule 7, he must meet the same conditions prescribed by § 2254(e)(2) for obtaining an evidentiary hearing. See Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam) (recognizing that § 2254(e)(2)'s "restrictions apply a fortiori when a prisoner seeks relief based on new evidence without an evidentiary hearing"); see also Bradshaw v. Richey, 546 U.S. 74, 79 (2005) (holding federal appellate court erred by relying on evidence not properly presented to state courts without first determining whether habeas petitioner had met § 2254(e)(2) criteria).

"Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 429-32 (2000); see also Wolfe v. Johnson, 565 F.3d 140, 167 (4th Cir. 2009) (applying Williams standard to review denial of evidentiary hearing). "Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend... upon whether those efforts could have been successful." Williams, 529 U.S. at 435.

If a habeas petitioner has failed to develop the factual basis of his claim in the state court proceedings, he must show either that his claim relies upon "a new rule of constitutional law, made retroactive to cases on collateral review, " or "a factual predicate that could not have been previously discovered through the exercise of due diligence, " § 2254(e)(2)(A), and that the evidence clearly and convincingly establishes "that but for constitutional error, no reasonable fact-finder would have found [him] guilty, " 28 U.S.C. § 2254(e)(2)(B).

As an initial matter, with respect to the Narrative, investigative file report, and the transcript of the 911 call, those matters already constitute part of the record before the state court. (See Docket Entry 9-9 at 81-82, 88 (911 call); 120-23 (investigative file report); Docket Entry 9-10 at 61-64 (Narrative).) Thus, no need exists to "expand" the record to include such materials, and the undersigned will deny as moot Petitioner's request to add those items to the record.

As to the remaining items at issue, the record establishes that Petitioner failed to develop the state court record. Petitioner either already possessed, or had access through his stand-by trial and/or appellate counsel to, such items prior to the date on which he filed his MAR in the state trial court (December 21, 2012 (see Docket Entry 9-14 at 2 (reflecting date MAR filed)). (See Docket Entry 2-2 at 14 (February 2, 2010 letter from prosecutor to Petitioner regarding disclosure of radio transmissions and 911 call), 17 and 20 (September 30, 2009 and September 22, 2010 letters from prosecutor to Petitioner regarding disclosure of felony case summary), 19 (February 3, 2010 letter from prosecutor to Petitioner regarding disclosure of notes from interview of Deputy Roberts); Docket Entry 11 at 65 (court reporter's certification regarding August 26, 2010 hearing transcript provided to stand-by counsel on March 1, 2011); Docket Entry 9-14 at 23 (Petitioner's MAR argument demonstrating his awareness of his correspondence with appellate counsel), 26 (Petitioner's MAR argument specifically referencing notes from interview of Michelle Furr), 28 (Petitioner's MAR argument expressly referencing Darren Furr's statement), 31 (Petitioner's MAR argument referencing photograph of hand print he received in discovery). Notwithstanding his possession of (or access to) those items, Petitioner failed to submit them to the MAR court or otherwise ensure that such materials became a part of the state court record. (See Docket Entries 9-2, 9-12, 9-14.) Petitioner's omission of those items from the state court record constitutes a failure to develop the factual basis of his underlying claims in the state court proceedings, 28 U.S.C. § 2254(e)(2). See Swann v. Taylor, No. 98-20, 1999 WL 92435, at *8 (4th Cir. Feb. 18, 1999) (unpublished) (finding that the petitioner "failed to develop the factual basis of his... claim within the meaning of § 2254(e)(2), because he did not present the [new evidence] at any point during the proceedings in the state courts" and further finding "no basis upon which to conclude that the state courts... denied [the petitioner] the opportunity to offer the [evidence] or otherwise develop the factual basis of his claim" (internal quotation marks omitted)); Waters v. Clark, No. 2:11cv630, 2012 WL 4498914, at *15 (E.D. Va. Sept. 28, 2012) (unpublished) (holding that the petitioner "failed to diligently develop the record in the state court proceedings because he apparently had in his possession several pieces of evidence in support of his habeas claims that he did not present to the state court - namely, the majority of the exhibits attached to [the petitioner's] improperly filed supplemental brief").

Accordingly, Petitioner may expand the record with his requested materials only if he can make the showing required by 28 U.S.C. § 2254(e)(2)(A) and (B). Here, Petitioner has neither argued that his claims depend on a new, retroactive rule of constitutional law, nor asserted that he could not have discovered the factual predicate of such claims with due diligence. (See Docket Entry 12.) Indeed, a review of Grounds One through Nine in the instant Petition reveals that none of those grounds rely upon a new, retroactive constitutional rule, and that Petitioner possessed awareness of the factual predicates of those grounds, at the latest, as of the completion of his trial (Grounds Two through Nine), or as of the conclusion of his direct appeal (Ground One).

Accordingly, the undersigned will deny Petitioner's Motion for Leave to Expand the Record.

Motions to Amend the Petition

On March 31, 2015, the undersigned allowed Petitioner 30 days to file a supplemental memorandum addressing the timeliness of the proposed amendments to the Petition in his "Request for Leave to Amend" (Docket Entry 22) and "Motion for Leave to Amend and Proposed Amendment" (Docket Entry 35). (See third Text Order dated Mar. 31, 2015.)[5] In Petitioner's Supplemental Memorandum Addressing Timeliness of Proposed Amendments to § 2254 Petition (Docket Entry 44), he tacitly conceded the untimeliness of his proposed amendments, and focused his arguments instead on various grounds on which the Court should consider his amendments despite their untimeliness. In other words, Petitioner impliedly requested equitable tolling, which doctrine the Supreme Court has ruled applicable in this context. See Holland v. Florida, 560 U.S. 631, 634 (2010). Equitable tolling may apply when a petitioner "shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

Here, Petitioner argues his ignorance of the law as a "layman, " his lack of access to a law library or assistance from North Carolina Prisoner Legal Services ("NCPLS"), his indigence, and his "diagnosed mental illness complications and/or illness" ought to toll the one-year statute of limitations. (See Docket Entry 44 at 2-3.) Petitioner's arguments lack merit.

Unfamiliarity with the legal process and lack of legal representation do not constitute grounds for equitable tolling. United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Further, under Bounds v. Smith, 430 U.S. 817, 828 (1977), overruled on other grounds by Lewis v. Casey, 518 U.S. 343, 354 (1996), the state has an obligation to provide either prison law libraries or assistance from persons trained in the law. Because inmates in this State have access to NCPLS, the state has no legal obligation to provide law libraries for its inmates. See Burgess v. Herron, No. 1:11CV420, 2011 WL 5289769, at *2 (M.D. N.C. Nov. 2, 2011) (unpublished). In that regard, Petitioner's conclusory assertion that NCPLS did not aid him by "providing legal information" or "staff attorneys for the filing of § 2254 habeas corpus petitions" (see Docket Entry 44 at 2) does not suffice to demonstrate an "extraordinary circumstance" preventing timely filing, Holland, 430 U.S. at 634. Petitioner does not even assert that he ever contacted NCPLS for assistance with the instant Petition, much less that NCPLS ignored or declined his request for assistance (see Docket Entry 44), but such claims generally will not support an equitable tolling claim in any event. Hood v. Jackson, No. 5:10-HC2008-FL, 2010 WL 4974550, at *2 (E.D. N.C. Dec. 1, 2010) (unpublished) (citing cases); Dockery v. Beck, No. 1:02CV00070, 2002 WL 32813704, at *2 (M.D. N.C. August 1, 2002) (Beaty, J., adopting recommendation of Eliason, M.J.) (unpublished).[6]

Finally, courts have held that mental incompetency can warrant equitable tolling; however, a petitioner's mental illness must not have merely lessened his ability to file or made filing difficult, but must have actually prevented him from understanding his legal rights and acting on them. Rhodes v. Senkowski, 82 F.Supp.2d 160, 168-69 (S.D.N.Y. 2000) (collecting cases). "As a general matter, the federal courts will apply equitable tolling because of a petitioner's mental condition only in cases of profound mental incapacity, " such as where a petitioner is institutionalized or adjudged mentally incompetent. Sosa, 364 F.3d at 513. Simply having a mental illness and taking medications does not suffice. Id. Nor will conclusory allegations meet a petitioner's burden. Rhodes, 82 F.Supp.2d at 172. Here, Petitioner has neither alleged any specific mental condition nor made any showing that any such condition actually prevented him from understanding his legal rights and acting on them. Petitioner's failure to make that showing carries heightened significance where, as here, he managed to file the instant Petition containing nine grounds for relief and multiple other motions and filings despite any mental limitations.

In sum, the undersigned will deny "Petitioner's Request for Leave to Amend" (Docket Entry 22) and "Petitioner's Motion for Leave to Amend and Proposed Amendment" (Docket Entry 35), as the untimeliness of the amendments contained therein render them futile. See Woodruff v. Warden of Perry Corr. Inst., Civ. Action No. 9:07-2739-PMD-GCK, 2008 WL 4200291, at *5 (D.S.C. Sept. 8, 2008) (unpublished) ("[The][p]etitioner's proposed new claim... is clearly devoid of legal merit, and allowing him leave to amend his § 2254 petition to add such a claim would be futile. Therefore, [his] Motion to Amend is denied.").

Facts

The facts of the case, as set out in the North Carolina Court of Appeals's opinion on Petitioner's direct appeal, are as follows:

[I]n the early morning hours of 20 August 2009, Darren and Michelle Furr awoke to the sound of ringing chimes, which indicated that the door to their detached garage was opened. Mrs. Furr called 911 and went to a window which faced the driveway in the front of her house. As she arrived at the window, she heard a rattling sound that appeared to come from the door leading to another garage which was attached to their house. Through the window, Mrs. Furr saw a man, later identified as [Petitioner], reaching into the passenger side of her Chevrolet Suburban. [Petitioner] ran when Mrs. Furr attempted to open the window, and Mr. Furr and his son chased after him. Mr. Furr lost sight of [Petitioner], but responding officers located [Petitioner] in a tree in the front yard of a nearby house and took him into custody.

France, 2012 WL 3573920, at *1.

Grounds for Relief

Petitioner raises nine grounds for relief in his Petition. He alleges that (1) Petitioner's appellate counsel provided constitutionally ineffective assistance by failing "to raise any and all grounds upon first appeal, " by failing to obtain a pre-trial motion hearing transcript, and by "waiv[ing] Petitioner's statutory rights to withdraw his appeal against Petitioner's instructions" (Docket Entry 2 at 5; see also Docket Entry 11 at 2-10); (2) the "arresting and complaining officers both knowingly and/or in deliberate disregard for the truth supplied the issuing magistrate false information and/or falsified evidence in the complaint in order to establish probable cause for issuance of warrants for Petitioner's arrest" in violation of the Fourth Amendment (Docket Entry 2 at 6; see also Docket Entry 11 at 12-15); (3) the trial court violated the Confrontation Clause of the Sixth Amendment by proceeding to trial in the absence of an arresting officer and by admitting hearsay testimony from seven state witnesses regarding the arresting officer's statements (Docket Entry 2 at 8; see also Docket Entry 11 at 16-17); (4) the state violated Petitioner's rights under the Fifth and Sixth Amendments by failing to provide Petitioner with fingerprint evidence and complete radio transmissions, photographs, and video footage from the arresting officer's vehicle, by "provid[ing] false and/or fabricated material statements of fact and/or evidence, " and by "fail[ing] to disclose the use of expert testimony" (Docket Entry 2 at 10; see also Docket Entry 11 at 19-22); (5) the state violated Petitioner's Fifth and Sixth Amendment rights by "prosecuting him without probable cause to believe he committed the offenses charged" (Docket Entry 2 at 12; see also Docket Entry 11 at 23-24); (6) the state violated Petitioner's Fifth Amendment due process rights by use of "impermissibly suggestive identification procedures" (Docket Entry 2 at 14; see also Docket Entry 11 at 25-27); (7) the state violated Petitioner's Fifth and Sixth Amendment rights to a fair trial and due process by presenting the "perjured testimony" of an officer to the grand jury (Docket Entry 2 at 16; see also Docket Entry 11 at 28-31); (8) the state violated Petitioner's Sixth Amendment right to a speedy trial (Docket Entry 2 at 18; see also Docket Entry 11 at 32-34); and (9) "the cumulative affect [sic] of perjured, prejudicial, hearsay, irrelevant or otherwise inadmissible testimony or evidence" admitted by the trial court violated Petitioner's Fifth and Sixth Amendment rights to due process and a fair trial (Docket Entry 2 at 20; see also Docket Entry 11 at 35-37).

Habeas Standards

The Court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, "[b]efore [the] [C]ourt may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to [this] [C]ourt in a habeas petition. The exhaustion doctrine... is now codified at 28 U.S.C. § 2254(b)(1)." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(3) ("A State shall not be deemed to have waived the exhaustion requirement... unless the State, through counsel, expressly waives the requirement.").

When a petitioner has exhausted state remedies, this Court must apply a highly deferential standard of review in connection with habeas claims "adjudicated on the merits in State court proceedings, " 28 U.S.C. § 2254(d). More specifically, the Court may not grant relief unless a state court decision on the merits "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. To qualify as "contrary to" United States Supreme Court precedent, a state court decision either must arrive at "a conclusion opposite to that reached by [the United States Supreme] Court [or]... confront[] facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive[] at a result opposite to that reached by [the United States Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision "involves an unreasonable application" of United States Supreme Court case law "if the state court identifies the correct governing legal rule from [the United States Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407; see also id. at 409-11 (explaining that "unreasonable" does not mean merely "incorrect" or "erroneous").

Discussion

I. Ground One

Petitioner first maintains that his appellate counsel provided constitutionally deficient performance. (Docket Entry 2 at 5; see also Docket Entry 11 at 2-10.) In particular, Petitioner alleges that his appellate counsel refused to "raise any and all grounds on first appeal against Petitioner's specific instructions." (Docket Entry 2 at 5; see also Docket Entry 11 at 2-5, 8-10.) Although Petitioner did not specify which grounds his appellate counsel should have raised in the "Supporting Facts" section of Ground One (see Docket Entry 2, ¶ 12 (Ground One) (a)), for each of Petitioner's subsequent grounds, he indicated that he did not raise those issues on direct appeal because his appellate counsel refused to investigate or raise the issues after being instructed to do so by Petitioner (see id., ¶ 12 (Ground Two) (c)(2), (Ground Three) (c)(2), (Ground Four) (c)(2), (Ground Five) (c)(2), (Ground Six) (c)(2), (Ground Seven) (c)(2), (Ground Eight) (c)(2), (Ground Nine) (c)(2)). Thus, the Court should construe his Petition to assert Grounds Two through Nine as issues that appellate counsel should have raised on direct appeal.[7] According to Petitioner, his appellate counsel's "failure to raise a single issue in challenge to [his] convictions for attempted first degree burglary, breaking and entering, and breaking and entering a motor vehicle, essentially constituted counsel conceding Petitioner's guilt in these matters, against Petitioner's instructions...." (Docket Entry 11 at 3.) Additionally, Petitioner argues that his appellate counsel failed to obtain a transcript of the August 26, 2010, hearing before the trial court on Petitioner's motions to quash, for bond reduction, and to suppress, and "waived Petitioner's statutory rights to withdraw his appeal against Petitioner's instructions." (Docket Entry 2 at 5; see also Docket Entry 11 at 2, 8, 9, 10.) Petitioner's arguments lack merit.

Petitioner presented the substance of this ground to the state trial court in his MAR. (See Docket Entry 9-14 at 4, 13, 23-24.) That court ...


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