United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court upon Petitioner's pro se
“Motion for New Trial, Amendment of Judgment, ”
which shall be considered under Rule 59(e) of the Federal
Rules of Civil Procedure. (Doc. No. 22).
is a prisoner of the State of North Carolina who is serving a
life-sentence for first-degree murder. The State's
evidence at his trial 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.
pursuing remedies in the state courts, Petitioner filed a pro
se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 in this Court on December 29, 2015. (Doc. No. 1.)
The Court subsequently granted the State's Motion for
Summary Judgment and dismissed the habeas Petition as
untimely under 28 U.S.C. § 2244(d)(1)(A). (Doc. No. 11.)
The Court also concluded that Petitioner could not rely upon
the actual innocence exception to 28 U.S.C. §
2244(d)(1)(D), see McQuiggin v. Perkins, 133 S.Ct.
1924, 1928 (2013), to get around the statute of limitations.
(Doc. No. 11.)
appeal, 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
dismissed the appeal and remanded to this Court for
consideration of those “claims.” On remand, the
Court held that neither § 2244(d)(1)(C) nor (D) was
applicable, granted Summary Judgment to the State, and again
dismissed the Petition as untimely. ...