United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter comes before the court on respondent's motion for
summary judgment (DE 7) and motion to dismiss (DE 11). The
issues raised have been fully briefed and are ripe for
adjudication. For the following reasons, the court grants
November 18, 2011, petitioner was convicted, following a jury
trial in Wayne County Superior Court, of first
degree murder. See State v. Ingram, 227 N.C.App.
383, 741 S.E.2d 906, (2013). Petitioner was tried
non-capitally, and the jury was not given the option of
imposing a death sentence. The superior court sentenced
petitioner to life imprisonment without the possibility of
parole. Id. Petitioner appealed, and, on July 15,
2014, the North Carolina Court of Appeals found no error in
petitioner's conviction or sentence. Id. The
North Carolina Supreme Court denied petitioner's
counseled petition for discretionary review
(“PDR”) on September 3, 2013. (Resp't Ex. 3
(DE 9-3). Petitioner was represented at trial by Mr. Charles
R. Gurley and on appeal by Mr. M. Gordon Widenhouse, Jr.
October 16, 2014, petitioner filed a pro se motion
for appropriate relief (“MAR”) in Wayne County
Superior Court. (Resp't Ex. 10 (DE 9-10)). The superior
court denied petitioner's MAR on May 6, 2015. (Resp't
Ex. 11 (DE 9-11)). On August 5, 2015, petitioner filed a
pro se petition for a writ of certiorari in the
North Carolina Court of Appeals, which was denied on August
21, 2015. (Resp't Ex. 14 (DE 9-14)). On August 31, 2015,
petitioner filed a pro se petition for a writ of
certiorari in the North Carolina Supreme Court, which was
denied on November 5, 2015. (Resp't. Ex. 17 (DE 9-17)).
November 19, 2015,  petitioner filed the instant pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 asserting the following grounds for
relief: (1) the trial court improperly denied his motion to
dismiss; (2) the trial court erred in declining to instruct
the jury on the lesser included offense of second-degree
murder; (3) prosecutorial misconduct; (4) ineffective
assistance of trial counsel; and (5) ineffective assistance
of appellate counsel.
29, 2016, respondent filed both a motion for summary
judgment, arguing that petitioner is not entitled to relief
on the merits of his claims and a motion to dismiss on the
grounds that petitioner's habeas petition was filed
outside of the statute of limitations, and therefore is
time-barred. The motions were fully briefed. On June 30,
2016, the clerk of court issued a Rule 56 letter in
compliance with Roseboro v. Garrison, 528 F.2d 309,
310 (4th Cir. 1975). Petitioner responded to the motions. As
part of his response, petitioner filed an appendix consisting
of the following exhibits: (1) citations to the trial
transcript and other excerpts from the trial record; (2) his
MAR; (3) a letter of investigation for North Carolina
Prisoner Legal Services (“NCPLS”); and (4) his
own affidavit, which was prepared for him by a NCPLS attorney
prior to completing her investigation.
OF THE FACTS
facts as summarized by the North Carolina Court of Appeals
are as follows:
On the afternoon of 10 September 2007, T.K., then ten years
old, returned home from school. She observed her cousin,
Tamorris Raynor (Raynor), emerging from the home. A man in a
white t-shirt, whom T.K. had seen before, exited a gray
automobile and spoke with Raynor. The man and Raynor went
behind the house. After the man met with Raynor, he departed
in his vehicle, parked it around the corner by a funeral
home, and returned to the property via a concealed, wooded
When T.K. returned, she heard gunfire and saw Raynor come
around the house. The other man came around the house and
shot Raynor. T.K. gave a statement to the police. She
identified the photograph of Windsor Ingram (defendant) from
a photographic lineup as the man who shot Raynor.
Ernest Raynor (Ernest), Raynor's uncle, ran outside after
hearing shots and found Raynor on the ground. He saw a man
flee down a path and get into a gray Lincoln LS automobile.
Ernest described the man as being 5'8" or
5'9", wearing a white t-shirt, white cap, and jeans.
Telephone records revealed that Raynor had used Ernest's
telephone to call two different phone numbers that day, one
of which was that of defendant's cellphone.
Defendant was charged with first-degree murder based on
premeditation and deliberation. His first trial ended in a
mistrial when the jury could not reach a unanimous verdict.
The case was tried a second time before a jury at the 14
November 2011 Criminal Session of the Superior Court for
Wayne County. The jury found defendant guilty of first-degree
murder. The trial court sentenced defendant to life
imprisonment without the possibility of parole.
State v. Ingram, 227 N.C.App. 383, 384, 741 S.E.2d
906, 908 (2013).
Summary Judgment and Motion to Dismiss
Standard of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party then must affirmatively demonstrate that
there exists a genuine issue of material fact requiring
trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). There is no issue
for trial unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that
party. Anderson, 477 U.S. at 250.
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the complaint but “does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). A complaint
states a claim if it contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Asking for plausible grounds . . . does not impose a
probability requirement at the pleading stage; it simply
calls for enough fact to raise a reasonable expectation that
discovery will reveal [the] evidence” required to prove
the claim. Twombly, 550 U.S. at 556.
the complaint need not set forth “detailed factual
allegations, ” but instead must simply “plead
sufficient facts to allow a court, drawing on ‘judicial
experience and common sense, ' to infer ‘more than
the mere possibility of misconduct.'” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 256 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at
679). In evaluating the complaint, “[the] court accepts
all well-pled facts as true and construes these facts in the
light most favorable to the plaintiff, ” but does not
consider “legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement[, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Id. at 255
considering a Rule 12(b)(6) motion, a court must keep in mind
the principle that “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)); Noble v.
Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994).
Nevertheless, Erickson does not undermine the
requirement that a pleading contain “more than labels
and conclusions.” Giarratano v. Johnson, 521
F.3d 298, 304 n.5 (4th Cir. 2008) (quoting Twombly,
550 U.S. at 555). Furthermore, while a pro se
complaint must be construed liberally, it is not the
court's obligation “to discern the unexpressed
intent of the plaintiff.” Laber v. Harvey, 438
F.3d 404, 413 n. 3 (4th Cir. 2006).
Statute of Limitations
court first addresses whether petitioner's § 2254
action is time-barred. Under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), a writ of
habeas corpus by a person in custody pursuant to the judgment
of a state court must be filed within one year. 28 U.S.C.
§ 2244(d)(1). The period begins to run from the latest
of several dates:
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 . . . is removed . . .; C) the date on
which the constitutional right 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.
running of the “period of limitation” under
§ 2244(d)(1) is tolled during the time “a properly
filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” 28 U.S.C. § 2244(d)(2); see
Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). An
application for post-conviction or other collateral review is
pending from initial filing until final disposition by the
state court. See Taylor, 186 F.3d at 561.
statutory period began to run in this case on the date
petitioner's judgment became final. Petitioner's
conviction became final on December 2, 2013, 90 days after
the North Carolina Supreme Court denied his PDR. See
Sup. Ct. R. 13.1 (providing 90 days in which to file a
certiorari petition with the United States Supreme Court from
a final order of a state's highest court denying review);
Clay v. United States, 537 U.S. 522, 527 (2003)
(“Finality attaches when this Court affirms a
conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for
filing a certiorari petition expires.”).
one-year statutory period then began to run on December 2,
2013 and ran for 318 days until petitioner filed his MAR on
October 16, 2014 . The one-year statute of limitations period
then was tolled from October 16, 2014, until the court of
appeals denied petitioner's certiorari petition on August
21, 2015. See N.C. Gen. Stat. § 7a-28(a)
(“Decisions of the Court of Appeals upon review of
[MARs alleging federal constitutional violations] are final
and not subject to further review in the Supreme Court by
appeal, motion, certification, writ, or otherwise.”);
N.C. R. App. P. 21(e) (providing that certiorari petitions
seeking review of MARs in non-capital cases “shall be
filed with the Court of Appeals and the Supreme Court will
not entertain petitions for certiorari or petitions for
further discretionary review in these cases”).
Petitioner's statutory period subsequently resumed on
August 21, 2015, and expired 47 days later on October 7,
2015. Because petitioner did not file his habeas petition in
this court until November 19, 2015, his action is
defense to the running of the statute of limitations,
petitioner contends that he is entitled to equitable tolling.
Even though the purpose of the AEDPA is to “reduce
delays in the execution of state and federal criminal
sentences . . . and to further the principles of comity,
finality, and federalism, ” the Fourth Circuit has held
that “the AEDPA statute of limitations is subject to
equitable tolling.” Rouse v. Lee, 339 F.3d
238, 246 (4th Cir. 2003) (en banc). Nonetheless, the Fourth
Circuit has noted the rarity in which equitable tolling
applies. “Any invocation of equity to relieve the
strict application of a statute of limitations must be
guarded and infrequent, lest circumstances of individualized
hardship supplant the rules of clearly drafted statutes . . .
. Principles of equitable tolling do not extend to garden
variety claims of excusable neglect.” Id. at
246 (citing Irwin v. Dep't of Veterans Affairs,
498 U.S. 89, 96 (1990)). Rather, equitable tolling only is
“appropriate when . . . extraordinary circumstances
beyond [the petitioner's] control prevented him from
complying with the statutory time limit.” Id.
(citation and quotations omitted).
petitioner contends that a North Carolina Prisoner Legal
Services (“NCPLS”) reviewed his claims from
November 2013 until October 2014. (Pet. 13). NCPLS declined
to represent petitioner, and notified him that his deadline
to file a § 2254 petition was November 25, 2014.
(Id.). As noted above, petitioner then filed a MAR
on October 16, 2014, which was denied on May 6, 2015.
(Id.). Petitioner contends that he did not receive
the order denying his MAR until July 20, 2015, and he claims
the running of the statute of limitations period should be
tolled because he has “no control over the legal mail
process.” (Id.). Petitioner is not entitled to
equitable tolling on these facts. See Brunson v.
Solomon, No. 5:14-HC-2009-FL, 2015 WL 331496, at *5
(E.D. N.C. Jan. 26, 2015) (“To the extent petitioner
asserts that NCPLS interfered with the timely filing of his
§ 2254 petition, ineffective assistance of counsel
generally does not warrant equitable tolling”),
appeal dismissed, 606 F. App'x 86 (4th Cir.
2015), cert. denied sub nom. Brunson v. Taylor, 136
S.Ct. 421, 193 L.Ed.2d 330 (2015), reh'g denied,
136 S.Ct. 926, 193 L.Ed.2d 811 (2016); Banuelos-Acosta v.
Keller, No. 1:11CV953, 2013 WL 1320506, at *5 (M.D. N.C.
Mar. 29, 2013) (“[E]ven if Petitioner did not actually
receive a copy of the trial court's order, to qualify for
equitable tolling, he must still exercise due diligence to
determine the status of his MAR.”) (citing Woodward
v. Williams, 263 F.3d 1135, 1143 (10th Cir. 2001)).
Here, as in Brunson, petitioner “does not
provide any evidence to suggest that NCPLS mislead him with
respect to any particular deadline, misrepresented that it
actually filed any motion or petition on his behalf, or that
it in fact would provide petitioner representation.”
Brunson, No. 5:14-HC-2009-FL, 2015 WL 331496, at *5.
NCPLS correctly informed petitioner of the deadline for
filing a habeas petition, and “[t]here is no indication
that petitioner was prevented from taking such action at an
earlier date, nor does petitioner identify any obstacle which
prevented him from filing a timely § 2254
petitioner does not specifically argue that his action is not
time-barred because he is actually innocent of his conviction
for first degree murder, he does assert that he has
“claims with great merit that would grant me my
freedom.” (Pet. 13). The Supreme Court recognized in
McQuiggin v. Perkins, ___ U.S. ___, ___, 133 S.Ct.
1924, 1928 (2013), an actual innocence exception to
AEDPA's time limitations. To establish actual innocence,
“a petitioner must show that it is more likely than not
that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.” Schlup v. Delo,
513 U.S. 298, 327 (1995); see McQuiggin, ___ U.S. at
___, 133 S.Ct. at 1935. “To be credible, such a claim
requires 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.
Further, “claims of actual innocence are rarely
successful, ” Schlup, 513 U.S. at 324, and
“should not be granted casually.” Wilson v.
Greene, 155 F.3d 396, 404 (4th Cir. 1998).
has not set forth any new or reliable evidence establishing
his actual innocence or any justifiable explanation for his
delay in raising his actual innocence claim. Petitioner's
own self-serving and belated protests of innocence are not
sufficient to satisfy the standard set forth in
McQuiggin. See McQuiggin, 133 S.Ct. at 1935
(“Unexplained delay in presenting new evidence bears on
the determination whether the petitioner has made the
requisite showing” that “it is more likely than
not that no reasonable juror would have convicted him in the
light of the new evidence.”); see also McDowell v.
Lemke, 737 F.3d 476, 483-84 (7th Cir. 2013) (stating
that “eleventh hour” self-serving affidavits
containing no indicia of reliability and which are
accompanied by no reasonable explanation for the delay are
inherently suspect with respect to a petitioner's efforts
to overcome procedural default). For reasons discussed in
more detail below, petitioner's argument that there was
insufficient evidence to convict him fails. Petitioner's
conclusory allegations are insufficient to toll the
limitations p e r i o d . S e e Nickerson v. Lee,
971 F.2d 1125, 1136 (4th Cir. 1992) (“Unsupported,
conclusory allegations do not entitle habeas petitioner to an
evidentiary hearing.”), overruled on other grounds
by, Gray v. Netherland, 518 U.S. 152, 165-66
(1996); see, e.g., Turner v. Director,
Virginia Dept. of Corrections, No. 1:13cv998, 2013 WL
6506179, at *3 (E.D. Va. Dec. 6, 2013) (“Here,
petitioner's conclusory arguments that new evidence of
some ill-defined “fraud” by the Commonwealth
undermines the validity of his convictions,  falls far
short of meeting this exacting standard. Therefore,
petitioner's reliance on McQuiggin to overcome
the untimeliness of this petition is unavailing.”),
appeal dismissed, 591 F. App'x 217 (4th Cir.
2015). Based upon the foregoing, petitioner's actual
innocence claim does not excuse the untimely filing of this
§ 2254 petition. Accordingly, respondent's motion to
dismiss petitioner's claims as time barred is GRANTED.
out of an abundance of caution the court will address
alternatively petitioner's individual claims.
court dismissed petitioner's third and fourth grounds for
relief on the ground that they were procedurally barred
because petitioner did not raise these arguments in his
direct appeal. (Resp't. Ex. 11 (DE 9-11)).
prisoner must exhaust the remedies available to him in state
court before he files a writ of habeas corpus in federal
court. 28 U.S.C. § 2254(b)(1)(A). Section 2254's
exhaustion requirement demands that state prisoners give
“the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). This “one full opportunity” includes
filing petitions for discretionary review with the state
supreme court when that review is part of the ordinary
appellate procedure in the state. See id. In North
Carolina, a petitioner may satisfy the exhaustion requirement
of § 2254 by directly appealing his conviction to the
North Carolina Court of Appeals and then petitioning the
Supreme Court of North Carolina for discretionary review, or
by filing a MAR and petitioning the North Carolina Court of
Appeals for a writ of certiorari. See N.C. Gen.
Stat. §§ 7A-31, 15A-1422.
did not raise his third and fourth grounds for relief claim
at issue on direct appeal. The MAR court subsequently
specifically ruled that petitioner “was in a position
to adequately raise grounds and issues underlying the present
motion and is therefore procedurally barred pursuant to N.C.
G.S. § 15A-1419.” (Resp't's Ex. 11 (DE
9-11) at 1). Section 15A-1419 is an independent and adequate
state procedural bar, precluding federal habeas review. S
e e Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir.
2008). Petitioner has not demonstrated cause or prejudice or
a fundamental miscarriage of justice to overcome the
procedural default. See Wright v. Angelone, 151 F.3d
151, 160 (4th Cir. 1998) (finding that a habeas court will
not review a claim that is procedurally defaulted absent a
showing of cause and prejudice to excuse the default, or that
a fundamental miscarriage of justice will occur if the habeas
court declines to review the claim). Because petitioner
failed to preserve his claims under North Carolina law, they
are procedurally barred. See, e.g., Woodford v.
Ngo, 548 U.S. 81, 92 (2006); Coleman v.
Thompson, 501 U.S. 722, ...