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Johnson v. Mitchell

United States District Court, W.D. North Carolina, Charlotte Division

May 9, 2017

MONTAVIUS ANTOINE JOHNSON, Petitioner,
v.
DAVID MITCHELL, Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court upon remand from the Fourth Circuit Court of Appeals of Petitioner Montavius Antoine Johnson's pro se Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On August 24, 2016, this Court entered an Order granting Respondent's Motion for Summary Judgment and dismissing Petitioner's § 2254 habeas Petition as untimely under 28 U.S.C. § 2244(d)(1)(A). (Doc. No. 11).) Petitioner appealed, and on April 14, 2017, the Fourth Circuit Court of Appeals concluded that this Court had “failed to consider [Petitioner's] claims that his petition was timely pursuant to 28 U.S.C. § 2244(d)(1)(C), (D) (2012).” (Doc. No. 16.) It, therefore, dismissed the appeal and remanded to this Court for consideration of those “claims.”

         I.BACKGROUND

         Petitioner is a prisoner of the State of North Carolina, who was convicted on February 8, 2002, after a trial by jury in Mecklenburg County Superior Court, of first-degree murder under the felony murder rule and armed robbery and was sentenced to life imprisonment without parole. The State's evidence tended to show that:

On 2 July 1999 at approximately 2:30 a.m., Kimberly Pegues met her boyfriend Antonio Baker at a friend's apartment. When Pegues arrived, she noticed that Baker had a 10-millimeter Glock handgun in his pocket. Shortly thereafter, the couple left the apartment and Baker put the gun in his car. The couple then drove their separate cars to a fast food restaurant where Pegues got out of her vehicle to use the phone; Baker remained in his car. Upon returning to her car and backing out of the parking space, Pegues saw Defendant and another person approach Baker's car (later identified as C.J. Toney). Pegues heard someone yell “Give me your shit” and then “I don't have anything, man.” Pegues saw defendant rummaging through Baker's car, and observed him throw belongings from Baker's glove box and back seat into the street. Pegues heard a shot and saw Defendant run back to his vehicle. Shortly thereafter, defendant returned to Baker's car and Pegues heard another shot. Baker died from a gunshot wound to the head.
A police investigation uncovered a 10-millimeter shell in Defendant's yard, with markings consistent with having been fired from a 10-millimeter Glock.
At trial, Defendant's counsel made the following statements during his opening statement:
C. J. Toney is the individual who shot both shots that night. That is our contention. And, he is the individual who shot and killed Baker.
Now, what happens in between there is a question of whether Mr. Johnson was trying to prevent that or not. Now remember, whatever Ms. Pegues tells you, we're asking you to pay close attention to it and look at; because, the positioning of the people is very important; where they were; and, what they may or may not have been doing.
Because, there may have been other reasons why Mr. Johnson was in between Mr. Toney and Mr. Baker. And, we will ask you to consider those reasons, at the appropriate time.
So, listen carefully to this eyewitness testimony and weigh what could have been seen and what could not be seen.

State v. Johnson, 588 S.E.2d 488, 489-90 ( N.C. Ct. App. 2003).

         On direct appeal, Petitioner claimed trial counsel was ineffective for promising in his opening statement to present an affirmative defense and then failing to do so. Id. On December 2, 2003, the North Carolina Court of Appeals filed an opinion affirming judgment. Id. at 492. Petitioner did not seek discretionary review in the North Carolina Supreme Court.

         On December 5, 2013, Petitioner filed a pro se motion for preservation of evidence and post-conviction DNA testing in Mecklenburg County Superior Court. (Resp't's Ex. 4, Doc. No. 8-5.) It was denied on January 14, 2014. (Resp't's Ex. 6, Doc. No. 8-7.) On or about January 30, 2014, Petitioner filed a pro se “Notice and Petition for Discharge From Imprisonment and Notice for Provisional Release” (Resp't's Ex. 7, Doc. No. 8-8), which the Mecklenburg County Superior Court construed as a motion for appropriate relief (“MAR”) and summarily denied on March 4, 2015 (Resp't's Ex. 8, Doc. No. 8-9). On March 25, 2016, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals (Resp't's Ex. 10, Doc. No. 8-11), which was denied on April 16, 2015 (Resp't's Ex. 12, Doc. No. 8-13).

         Petitioner filed the instant federal habeas Petition on December 29, 2015, when he signed and placed it in the prison mailing system. (Pet. 15, Doc. No. 1.)[1] He raises four grounds for relief: (1) newly discovered evidence demonstrates that he is actually innocent of Baker's murder; (2) the State suppressed exculpatory evidence that would have shown Petitioner is actually innocent of Baker's murder; (3) trial counsel rendered ineffective assistance by failing to follow through on a promise to present an affirmative defense at trial; and (4) trial counsel was unable to render effective assistance due to the State's suppression of material, exculpatory evidence. Upon order of the Court, Respondent filed an Answer and Motion for Summary Judgment. (Doc. Nos. 6, 7.) In addition to addressing their merits, Respondent raised a statute of limitations defense with respect to all the claims raised. (Answer ¶ 1, Doc. No. 6.)

         In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court provided Petitioner notice and an opportunity to respond to the Motion for Summary Judgment. (Doc. No. 9.) Subsequently, Petitioner filed a 45-page response in which he raised new claims and alleged facts that were not in his habeas Petition. (Doc. No. 10.)

         On August 24, 2016, this Court entered an Order granting Respondent's Motion for Summary Judgment and dismissing Petitioner's § 2254 habeas Petition as untimely under 28 U.S.C. § 2244(d)(1)(A). (Doc. No. 11).) In its Order, the Court found Petitioner had failed to demonstrate that the State suppressed material exculpatory evidence. The Court also found that there was no merit to Petitioner's assertion that newly discovered evidence demonstrated he was actually innocent of Baker's murder. (Order Dismiss'g Pet. 5-8, Doc. No. 11) (citing 28 U.S.C. § 2244(d)(1)(D); McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013).) Finally, the Court noted that “Petitioner does not contend that he is entitled to equitable tolling of any of his claims.” (Order Dismiss'g Pet. 9 n.4.)

         Petitioner appealed, and on April 14, 2017, the Fourth Circuit Court of Appeals concluded that this Court had “failed to consider [Petitioner's] claims that his petition was timely pursuant to 28 U.S.C. § 2244(d)(1)(C), (D) (2012).” (Doc. No. 16.) It, therefore, dismissed the ...


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