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Hayes v. Carver

United States District Court, M.D. North Carolina

July 3, 2017

JOHN R. HAYES, III, Petitioner,
v.
MARK CARVER, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States 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 1.) Respondent has moved to dismiss the Petition on grounds of untimeliness. (Docket Entries 6, 7.) For the reasons that follow, the Court should dismiss the Petition as untimely.

         I. Procedural History

         On July 19, 1994, in the Superior Court of Forsyth County, a jury found Petitioner guilty of two counts of second degree murder in cases 93 CRS 36994 and 36995. (See Docket Entry 1, ¶¶ 1, 2, 4-6; Docket Entry 7-4 at 2-3.)[1] The trial court sentenced Petitioner to two consecutive life sentences. (See Docket Entry 1, ¶ 3; Docket Entry 7-5 at 2-3, 6-7.)

         Petitioner appealed (see Docket Entry 1, ¶¶ 8, 9), and, on August 15, 1995, the North Carolina Court of Appeals issued an unpublished opinion finding no error arising from Petitioner's trial (Docket Entry 7-6 at 2-4). Petitioner did not thereafter petition the North Carolina Supreme Court for discretionary review. (See Docket Entry 1, ¶ 9(g).)

         Years later, the Director of the Wake Forest University Innocence and Justice Clinic (“WFIJC”), Mark Rabil, began to investigate Petitioner's case, and assigned law students enrolled in the WFIJC to assist. (See Docket Entry 7-12 at 51-52, 55-57; Docket Entry 7-9 at 5, 16.)[2] At an unidentified point during that investigation, Petitioner allegedly first learned of a third gunshot victim, Kenneth Evans, who survived his injuries.[3] As a result of learning about Evans, on February 10, 2011, Petitioner (through Rabil as pro bono counsel) requested a copy of the police file in his case from Jennifer Martin, the chief assistant district attorney of Forsyth County. (See Docket Entry 7-10 at 4.) According to Petitioner, Martin provided Petitioner with a copy of a portion of the police file that did not include seventeen transcribed witness statements. (See id.; see also Docket Entry 7-12 at 70, 77; Docket Entry 7-13 (copies of documents from police file Martin provided to Petitioner).) On March 23, 2011, Rabil and two law students enrolled in the WFIJC, Christopher Jackson and Travis Talbot, interviewed Petitioner's trial attorney, Warren Sparrow (see Docket Entry 7-10 at 11), and provided Sparrow with copies of the documents produced by Martin (see Docket Entry 7-10 at 12; see also Docket Entry 7-12 at 53-68.) According to Jackson, “Sparrow . . . could guarantee he never received a copy of the police file . . . presented to him.” (Docket Entry 7-10 at 12.)

         Thereafter, Petitioner's counsel requested and received from Martin a copy of a ballistics report and related documents from the State Bureau of Investigation (“SBI”) reflecting its analysis of certain physical evidence in Petitioner's case. (See id. at 4; see also Docket Entry 7-12 at 77-78; Docket Entry 7-14 (copies of SBI documents Martin provided to Petitioner).) After Petitioner's counsel mailed a copy of these additional documents to Sparrow (see Docket Entry 7-10 at 12), Sparrow left Jackson a voicemail on April 19, 2011, indicating that Sparrow “would not be reviewing the file and declined any further cooperation . . . in th[e] matter” (id.).

         Between April and October, 2012, Petitioner's counsel contacted Martin on several occasions, requesting to examine the physical evidence and obtain copies of the remainder of the police file. (See Docket Entry 7-10 at 4; see also Docket Entry 7-7 at 89-90.) On October 17, 2012, Martin sent an email to Petitioner's counsel declining his requests for further review of the evidence and police file, absent a court order for post-conviction discovery. (See Docket Entry 7-10 at 5; see also Docket Entry 7-12 at 81-82.)

         On February 12, 2013, Petitioner, through counsel, filed a Motion to Compel Discovery in the Forsyth County Superior Court (Docket Entry 7-7), requesting “copies of the complete police files . . . includ[ing] . . . all transcribed and recorded statements made by witnesses, . . . the video tape taken of the scene; any and all photographs of the crime scene; medical records for any and all of the shooting victims; and inventories or listings of any and all property taken into possession by law enforcement officers concerning the shootings . . ., copies of the complete files of the SBI Crime Lab for any and all inspection or testing of physical evidence . . ., [and] any and all exculpatory evidence relating to th[e] case” (id. at 6). After a hearing, the court denied that Motion, finding that the “174 pages of the police reports and [SBI] lab reports” previously provided by Martin constituted sufficient “information . . . to allow [Petitioner] to review, investigate, prepare and file a Motion for Appropriate Relief [(“MAR”)] and raise any potential claims for appropriate relief.” (Docket Entry 7-8 at 3.) On March 7, 2013, Petitioner, through counsel, filed a MAR in the Forsyth County Superior Court (Docket Entry 7-9; see Docket Entry 1, ¶¶ 10, 11(a)(1)-(5).) In that MAR, Petitioner alleged that the state failed to produce exculpatory and impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and solicited and failed to correct false testimony in violation of Napue v. Illinois, 360 U.S. 264 (1959). (See Docket Entry 7-9 at 5-11; see also Docket Entry 1, ¶ 11(a)(5).) Contemporaneously, Petitioner filed a second Motion to Compel Discovery with the Forsyth County Superior Court (Docket Entry 7-10), seeking the same materials from the state as the prior such motion, and adding requests for (1) “any statements made by [Petitioner's] trial attorney to any representative of the State . . ., [and] any records or notes . . . of any discovery which was provided to [Petitioner's] trial attorney and any records that [Petitioner's] trial attorney reviewed evidence in the possession of the prosecution or law enforcement” (id. at 7). On March 27, 2013, Forsyth County Assistant District Attorney Matthew Breeding provided additional material to Petitioner, including the transcribed statements of numerous witnesses. (See Docket Entry 7-11 at 3; see also Docket Entry 7-12 at 70-71.)

         After obtaining leave of court, Petitioner filed an amended MAR (“AMAR”) on August 30, 2013 (Docket Entry 7-11; see also Docket Entry 1, ¶ 11(a)(4), (5)), which raised the same Brady and Napue claims as the original MAR (compare Docket Entry 7-9, with Docket Entry 7-11), but added a claim for ineffective assistance of trial counsel (see Docket Entry 7-11 at 15-19) and additional citations to the materials produced by Breeding in March 2013 (see id. at 7-18).

         The Honorable William Z. Wood held a hearing on Petitioner's AMAR on October 7 and 8, 2014 (see Docket Entry 7-12), and Petitioner called Sparrow, Jackson, and Evans as witnesses (see Id. at 13-108). On November 21, 2014, Judge Wood entered an order denying all three claims in Petitioner's AMAR. (Docket Entry 7-16; see also Docket Entry 1, ¶ 11(a)(7), (8).) Petitioner, through counsel, filed a certiorari petition with the North Carolina Court of Appeals seeking review of his AMAR's denial on July 16, 2016 (Docket Entry 7-18; Docket Entry 1, ¶ 11(d)), which that court denied on August 24, 2016 (Docket Entry 7-20).

         Petitioner, proceeding through counsel, filed the instant Petition on September 2, 2016. (Docket Entry 1.) Respondent moved to dismiss the Petition on grounds of untimeliness (Docket Entries 6, 7), Petitioner responded in opposition (Docket Entries 10, 11), and Respondent replied (Docket Entry 17). For the reasons that follow, the Court should grant Respondent's instant Motion, because Petitioner submitted his Petition outside of the one-year limitations period.

         II. Facts

         On direct appeal, the North Carolina Court of Appeals summarized the trial evidence as follows:

The State's evidence tended to show that gunshots erupted outside a “drink house” in Winston-Salem during the early morning hours of 25 July 1993. [Petitioner] and others within the building rushed outside to investigate. [Petitioner] opened the trunk of an automobile, removed a gun with a clip, and began shooting the weapon into the air and into the crowd in the street. After firing a number of shots, he entered the vehicle and drove away, leaving two people dead as the result of medium caliber gunshot wounds.

(Docket Entry 7-6 at 2.)[4]

         III. Petitioner's Claims

         The Petition raises three grounds for relief: (1) “the State violated the Petitioner's due process rights under the 14th Amendment to the Constitution of the United States by soliciting and failing to correct false or misleading testimony” (Docket Entry 1 at 6 (initial capital letters omitted)); (2) “the State violated the Petitioner's due process rights under the 14th Amendment to the Constitution of the United States by failing to produce exculpatory and impeaching evidence as required by [Brady] and its progeny” (id. at 8 (initial capital letters omitted)); and (3) “the Petitioner's convictions were obtained in violation of the Sixth Amendment's guarantee to the effective assistance of counsel” (id. at 9 (initial capital letters omitted)).

         IV. Discussion

         Respondent moves to dismiss the Petition as filed outside of the one-year limitations period, see 28 U.S.C. § 2244(d)(1). (See Docket Entry 7 at 8-22.) In order to assess Respondent's statute of limitations argument, the Court must first determine when Petitioner's one-year period to file his Petition commenced. The United States Court of Appeals for the Fourth Circuit has explained:

         Under § 2244(d)(1)(A)-(D), the one-year limitation period begins to run from the latest of several potential starting 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 created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted 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.

Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008). The Court must determine timeliness on claim-by-claim basis. See Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).

         Respondent contends that the Petition remains untimely under subparagraph (A), because Petitioner's conviction finalized prior to the passage of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) and, thus, Petitioner had until April 24, 1997, one year after AEDPA's effective date, to file his instant Petition. (See Docket Entry 7 at 9-10.)[5] Petitioner has not contested Respondent's assertion of untimeliness under subparagraph (A) (see Docket Entry 11); however, in the paragraph of the instant Petition that requests an explanation of the timeliness of the Petition, Petitioner states that “[h]e was unable to discover the facts upon which his [AMAR] (filed on 8/30/2013) was based until all of the ...


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