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Ingram v. Daniels

United States District Court, E.D. North Carolina, Western Division

March 13, 2017

WINSOR DEVONE INGRAM, Petitioner,
v.
DENNIS DANIELS, Respondent.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         The 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 respondent's motions.

         STATEMENT OF CASE

         On November 18, 2011, petitioner was convicted, following a jury trial[1] 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.

         On 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)).

         On November 19, 2015, [2] 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.

         On June 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.

         STATEMENT OF THE FACTS

         The 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 path.
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).

         DISCUSSION

         A. Summary Judgment and Motion to Dismiss

         1. Standard of Review

         Summary 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.

         A 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.

         Furthermore, 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 (citations omitted).

         When 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).

         2. Analysis

         a. Statute of Limitations

         The 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.

Id.

         The 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.

         The 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.”).

         Petitioner's 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 time-barred.

         As a 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).

         Here, 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 petition.” Id.

         Although 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).

         Petitioner 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.

         Nonetheless, out of an abundance of caution the court will address alternatively petitioner's individual claims.

         b. Procedural Default

         The MAR 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)).

         A 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.

         Petitioner 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, ...


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