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Larry v. Thomas

United States District Court, M.D. North Carolina

May 29, 2019

EDWARD THOMAS[1], Warden, Central Prison, Raleigh, North Carolina, Respondent.



         Pursuant to Federal Rule of Civil Procedure 60(b)(6), Petitioner Thomas Michael Larry, a prisoner of the State of North Carolina, seeks relief from the judgment of this court, (Doc. 51), which denied his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, (Doc. 7), on October 11, 2006. (See Doc. 75). Because Petitioner has failed to show that he is entitled to relief, the court denies the instant motion.

         I. BACKGROUND

         According to the facts as presented in Petitioner's direct appeal, Petitioner robbed a Food Lion grocery store on January 15, 1994. State v. Larry, 345 N.C. 497, 507-08, 481 S.E.2d 907, 913 (1997). Pointing a small gun at an employee, Petitioner demanded that she open the store's safe. Petitioner took $1, 700.00 from the safe, pointing the gun at other people in the store and telling them not to move. Robert Buitrago, an off-duty police officer, was waiting in line at the check-out during the robbery, and Petitioner threatened him with the gun before fleeing the store. Buitrago chased Petitioner, and the two struggled outside the store. Witnesses heard one or more gunshots; Buitrago was fatally shot in the chest. Petitioner ran from the store, but police found him hiding in a residence in Winston Salem. Id.

         A jury convicted Petitioner on April 25, 1995, of first-degree murder and robbery with a dangerous weapon. For the first-degree murder conviction, based on premeditation and deliberation and the felony murder rule, the jury recommended that Petitioner be sentenced to death. The North Carolina Supreme Court affirmed Petitioner's conviction and sentence on March 7, 1997. Id. at 497, 481 S.E.2d at 907. The United States Supreme Court denied certiorari review on October 14, 1997. Larry v. North Carolina, 522 U.S. 917 (1997). Petitioner filed a motion for appropriate relief (“MAR”) and an amended MAR in the Superior Court of Forsyth County, seeking post-conviction relief. While the MAR was pending, he filed another motion pursuant to N.C. Gen. Stat. § 15A-2005, alleging that his mental retardation prohibited the State from carrying out his execution. The superior court denied the amended MAR on April 24, 2001, and the North Carolina Supreme Court denied review on June 27, 2002. State v. Larry, 355 N.C. 755, 566 S.E.2d 84 (2002). The superior court conducted an evidentiary hearing regarding Petitioner's second MAR and its mental retardation claim on July 3, 2003. After hearing evidence from experts on both sides, as well as witnesses who knew the petitioner, the court denied the motion. The North Carolina Supreme Court denied certiorari review on March 3, 2005. State v. Larry, 359 N.C. 324, 611 S.E.2d 841 (2005).

         Petitioner filed a petition for a writ of habeas corpus in this court on July 18, 2005. (Doc. 7.) On the same date, Petitioner filed an additional MAR in the superior court to reassert his mental retardation claim, as well as a motion in this court to hold his federal petition in abeyance until pending state court litigation was complete. This court denied the motion for abeyance on July 25, 2005. (Doc. 6.) On September 12, 2005, Respondent answered, (Doc. 15), and simultaneously filed a motion to dismiss certain claims that were not exhausted, (Doc. 16). Petitioner responded with a motion to expand the record, (Doc. 22), and another motion for abeyance, or, in the alternative, dismissal of all unexhausted claims, to avoid having the entire petition dismissed as a mixed petition. (Doc. 19.) This court denied the motion for abeyance and dismissed all unexhausted claims. (Doc. 38.) On June 13, 2006, the Magistrate Judge issued a recommendation, (Doc. 39), that the district court dismiss the petition. On October 11, 2006, this court adopted the Magistrate Judge's recommendation and ordered the petition dismissed. (Docs. 50, 51.) The court denied a motion pursuant to Rules 59 and 60 to alter or amend judgment on April 9, 2007. (Doc. 54.) The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of the petition on January 5, 2009. (Docs. 69, 70.) Mandate was issued on March 19, 2009. (Doc. 74.) Larry v. Branker, 552 F.3d 356 (4th Cir.), cert. denied, 558 U.S. 953 (2009).

         The October 11, 2006 ruling addressed, among other claims, the following non-dismissed grounds for relief: (II) the execution of the mentally retarded Petitioner would violate the Eighth Amendment to the United States Constitution, and (VI) trial counsel were ineffective by insulting the jury during closing argument in the penalty phase.[2]


         A. Overview

         Petitioner asks the court to grant him relief from its original denial of his petition on two grounds. First, he claims that Hall v. Florida, 572 U.S. 701 (2014), represents a “significant change” in the law regarding intellectual disability and the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002), which rules that the Eighth Amendment prohibits the execution of the intellectually disabled. (Doc. 75 at 12.) Second, he claims that this court should review his claims of ineffective assistance of counsel (“IAC”) because of the Court's ruling in Martinez v. Ryan, 566 U.S. 1 (2012). (Doc. 75 at 14.) Respondent argues that Petitioner's motion should be considered a second or successive petition and dismissed for his failure to obtain permission from the Fourth Circuit to file such a petition.

         B. Rule 60(b)

         A party may move for relief via a motion filed under Rule 60(b) within a reasonable time after a judgment has been entered. Fed.R.Civ.P. 60(b). The district court has the discretion to grant such a motion for “any other reason justifying relief from the operation of the judgment.” Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 872 (4th Cir. 1999). For Rule 60(b) to apply, however, “the movant must make a showing of timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and exceptional circumstances.” Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984) (citations/footnote omitted). In the habeas context, when a prisoner claims that there has been a change in law that amounts to “extraordinary circumstances, ” the court must consider whether the change in law overruled settled precedent and whether the prisoner has been “diligen[t] in pursuing review.” Gonzalez v. Crosby, 545 U.S. 524, 536-37 (2005).

         Federal habeas corpus petitioners may not use a Rule 60(b) motion to assert a claim attacking the merits of their state convictions. Id. at 538. A proper Rule 60(b) motion is one that attacks “some defect in the integrity of the federal habeas proceedings.” Id. at 532 (footnote omitted); see United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (explaining, “a motion directly attacking the prisoner's conviction or sentence will usually amount to a successive application, while a motion seeking a remedy for some defect in the collateral review process will generally be deemed a proper motion to reconsider”). The Supreme Court has defined a claim attacking the merits of a state conviction as “an asserted federal basis for relief from a state court's judgment of conviction.” Gonzalez, 545 U.S. at 530. Additionally, a Rule 60(b) motion will “bring a ‘claim' if it attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.” Id. at 532 (footnote omitted).

         The Fourth Circuit has warned that “district courts must treat Rule 60(b) motions as successive collateral review applications when failing to do so would allow the applicant to evade the bar against relitigation of claims presented in a prior application or the bar against litigation of claims not presented in a prior application.” Winestock, 340 F.3d at 206 (citations omitted). If the motion is “tantamount to [a] successive application[], ” the district court “must either dismiss the motion for ...

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