Opinion
No. 5:17-HC-2085-D
08-03-2018
Bobby Lee Rawlings, Petitioner, v. John A. Herring, Respondent.
Memorandum & Recommendation
Petitioner Bobby Lee Rawlings, a state inmate proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (D.E. 1). This matter is before the court upon respondent's motion for summary judgment (D.E. 14). For the following reasons, the undersigned recommends that the district court grant respondent's motion for summary judgment.
I. Background
In August, 2013, a jury found Rawlings guilty of attempted first degree murder, two counts of assault with a firearm on a law enforcement officer, assault with a deadly weapon with intent to kill ("AWDWIK"), and assault with a deadly weapon. Pet. at 1, D.E. 1; State v. Rawlings, 236 N.C. App. 437, 438, 762 S.E.2d 909, 911 (2014). Mr. Walter Webster represented Rawlings at trial. Pet. at 12, D.E. 1. The North Carolina Court of Appeals summarized the evidence and procedural history as follows:
On 15 March 2006, at about 9:40 a.m., 11 officers from the Goldsboro Police Department ("GPD") and the Drug Enforcement Agency assembled at defendant's residence to execute a search warrant. Officer Daniel Peters of the GPD knocked on the back door and yelled, "Police, search warrant." He then struck the door with a ram three or four times but was unable to open it because there were two-by-fours propped up against the door from the inside to keep it shut. Eventually one of the officers was able to break the door off its hinges, and the officers entered the house.
Once inside, Officer Peters proceeded upstairs with Sergeant Max Staps of the Wayne County Sheriff's Office and Captain Brady Thompson of the GPD, announcing, again, "Police, search warrant," as they did so. Once upstairs, Sergeant Staps found defendant's roommate, Rico Lewis, asleep on a mattress in a room directly across from the stairs and apprehended him. Officer Peters and Captain Thompson proceeded down the hall to check the rest of the rooms. Officer Peters opened the door to defendant's room and saw defendant standing 10 to 15 feet away from him with a pistol in his hand. As soon as the door opened, defendant fired three shots. Officer Peters felt the first bullet go past his arm, and retreated. Captain Thompson was hit in his bullet proof vest by one of the bullets.
After the shots were fired, Sergeant Staps left the room where he had Mr. Lewis handcuffed and went to the room across the hall from defendant's room, where he found Captain Thompson lying on the ground. Sergeant Staps checked Captain Thompson's pulse and checked to see if there was any blood. As he was checking on Captain Thompson, the door to defendant's room began to open. Sergeant Staps drew his weapon, announced that he was the police, and told defendant to put his gun down and give up. When the door opened, defendant had put down his gun and was sitting on the floor with his hands over his head. Defendant did not resist arrest.
When officers searched defendant, they found a significant amount of cocaine on his person. Additionally, officers found a marijuana cigarette, a police scanner, digital scales, and sandwich bags in defendant's house, as well as cocaine residue and bullets in defendant's vehicle. Testimony was presented that in the drug trade, digital scales are used to weigh controlled substances for sale, and sandwich bags are used for packaging.
On 3 July 2006, defendant was indicted, with respect to the shooting of Captain Thompson, for attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and assault with a firearm on a law enforcement officer. With respect to Officer Peters, defendant was indicted for assault with a firearm on a law enforcement officer and AWDWIK. Defendant pleaded guilty and was sentenced to a term of 133 to 169 months imprisonment. On 10 April 2012, the superior court granted defendant's motion for appropriate relief and vacated his convictions. Defendant subsequently entered a plea of not guilty and was tried from 13 to 16 August 2013.
At trial, defendant testified in his own defense that he is a Vietnam War veteran who suffers from post-traumatic stress disorder. He lived at the residence on East
Elm Street with a series of roommates. Five days before the officers executed their search warrant, defendant's roommate, Mr. Lewis, was robbed after an intruder entered through the back door of the house. After the robbery, defendant braced the back door with two-by-fours to keep the door closed. Defendant also bought a handgun, which he kept in his nightstand, because Mr. Lewis told defendant that he thought that the robbers were coming back.Rawlings, 762 S.E. 2d at 911-13.
On the morning of 15 March 2006, defendant was asleep in his bedroom when he was awakened by a boom. He then heard running up the stairs that panicked him "because nobody came up [his] stairs." He pulled out the handgun from his nightstand, locked and loaded it, and laid back down to listen. The television in his bedroom was turned on, but he could hear "creeping" up the stairs and expected a robbery. He never heard anyone say "police" or "search warrant."
Defendant heard another boom as his bedroom door was kicked in, and he saw a black man wearing dark clothes with a gun pointed at him whom he thought was a "stickup kid." Defendant immediately fired two shots as the door flung open—the door hit a file cabinet and bounced back shut again. After the door shut, defendant fired a clearance shot to make a noise so that he could crawl out of the bed onto the floor. When he then heard a lot of people running up the stairs, he asked, "[W]ho the hell is out there?" Several of the officers responded that it was law enforcement, and defendant realized, for the first time, that he was not being robbed. When he found out it was the police, he automatically put the gun down and lay down with his hands straight out in front of him until the officers arrested him.
The jury found defendant guilty of attempted first degree murder, AWDWIK, and assault with a firearm on a law enforcement officer for shooting Captain Thompson. The trial court sentenced defendant to presumptive-range terms of 251 to 311 months imprisonment for attempted first degree murder, 46 to 65 months imprisonment for assault with a firearm on a law enforcement officer, and 46 to 65 months imprisonment for AWDWIK. With respect to Officer Peters, the jury found defendant guilty of assault with a deadly weapon and assault with a firearm on a law enforcement officer. The trial court consolidated the two convictions and sentenced defendant on the more serious conviction to a presumptive-range term of 46 to 65 months imprisonment. All of the sentences ran concurrently. Defendant timely appealed to this Court.
In March, 2008, Rawlings was sentenced in the United States District Court for the Eastern District of North Carolina to 548 months imprisonment for various drug and firearm offenses. United States v. Rawlings, Case No. 5:06-CR-160-1-BO, D.E. 98. These charges included his March 15, 2006 possession and use of drugs and firearms. Id. at D.E. 47. In state court, Rawlings entered into a plea agreement calling for his state sentence to run concurrently with his federal sentence. Resp't. Ex. 3 at 25, D.E. 16-3. Due to, inter alia, the provisions of 18 U.S.C. § 3585(b), the state court was not authorized to order that Rawlings's state and federal sentences run concurrently. After Rawlings filed a counseled motion for appropriate relief, the Superior Court found Rawlings did not receive the full benefit of his plea agreement and vacated his convictions pursuant to Santobello v. New York, 404 U.S. 257 (1971). Id. at 93-94.
The Court of Appeals found no error in plaintiff's judgment, although it did remand the case to the trial court for correction of a clerical error in the judgment. Id. at 915. The trial court corrected the clerical error in an amended judgment on October 13, 2014. Resp't. Ex. 6a, D.E. 16- 7. The North Carolina Supreme Court denied Rawlings's petition for discretionary review on December 18, 2014. State v. Rawlings, 367 N.C. 803, 766 S.E.2d 627 (2014).
Rawlings then filed a motion for appropriate relief ("MAR") in Wayne County Superior Court on January 16, 2015. Pet. at 3, D.E. 1. He subsequently supplemented his MAR with two additional filings. Resp't. Ex. 7 at 10-12, D.E. 16-9. The Superior Court denied Rawlings's MAR, and any relief sought in his supplemental filings, on April 7, 2016. Id. After the court dismissed his MAR, Rawlings improperly filed a petition for writ of certiorari on April 21, 2016. Id. at 2-9. Specifically, Rawlings submitted this petition directly to the North Carolina Attorney General, but it was not received by any court. Resp't. Mem. at 2, D.E. 17. Although the appropriate venue for his petition would have been the North Carolina Court of Appeals, from the document's caption, it is clear Rawlings intended to file this petition with the North Carolina Supreme Court. Resp't. Ex. 7 at 2, D.E. 16-9. On December 5, 2016, Rawlings improperly filed another petition for writ of certiorari with the North Carolina Supreme Court. State v. Rawlings, 369 N.C. 533, 797 S.E.2d 287 (2017). The North Carolina Supreme Court dismissed Rawlings's certiorari petition on March 16, 2017. Id.
Rawlings should have filed his certiorari petitions with the North Carolina Court of Appeals. See State v. Ellis, 361 N.C. 200, 205, 639 S.E.2d 425, 428 (2007) ("statutory provisions ordinarily preclude our review of Court of Appeals decisions on MARs in noncapital cases"); see also N.C.G.S. § 7A-28(a) ("Decisions of the Court of Appeals upon review of motions for appropriate relief listed in G.S. 15A-1415(b) 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").
Rawlings filed his § 2254 petition on April 14, 2017. Pet. at 14, D.E. 1. His claims survived initial review (D.E. 10). Respondent filed this motion for summary judgment in February, 2018 (D.E. 14), and Rawlings responded (D.E. 19, 20, 21, 22).
The court gives petitioner the benefit of the mailbox rule. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a pro se prisoner's notice of appeal is filed at the moment it is delivered to prison authorities for mailing to the district court). --------
II. Discussion
A. Motion for Summary Judgment
Summary judgment is appropriate when there is 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 establishing 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 establish that there is a genuine issue of material fact requiring trial. Matsushita Elec. Indus. 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.
The standard of review for habeas petitions brought by state inmates, where the claims have been adjudicated on the merits in the state court, is set forth in 28 U.S.C. § 2254(d). That statute states that habeas relief cannot be granted in cases where a state court considered a claim on its merits unless the decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court, or the state court decision was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) and (2). A state court decision is "contrary to" Supreme Court precedent if it either arrives at "a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision "involves an unreasonable application" of Supreme Court law "if the state court identifies the correct governing legal principle from [the Supreme] Court's cases but unreasonably applies it to the facts of the state prisoner's case." Id. at 407; see White v. Woodall, 134 S. Ct. 1697, 1702-07 (2014); Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per curiam). A state court decision also may apply Supreme Court law unreasonably if it extends existing Supreme Court precedent to a new context where it does not apply, or unreasonably refuses to extend existing precedent to a new context where it should apply. Id. The applicable statute does not require that a state court cite to federal law in order for a federal court to determine whether the state court's decision is an objectively reasonable one, nor does it require a federal habeas court to offer an independent opinion as to whether it believes, based upon its own reading of the controlling Supreme Court precedents, that the [petitioner's] constitutional rights were violated during the state court proceedings. Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir. 2000), cert. denied, 534 U.S. 830 (2001). Moreover, a determination of a factual issue made by a state court is presumed correct, unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
B. Timeliness
Respondent argues that petitioner's section 2254 petition is time-barred. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that any application for a writ of habeas corpus filed by a person in custody pursuant to the judgment of a state court be filed within one year of the latest of certain dates. 28 U.S.C. § 2244(d)(1); see Frasch v. Peguese, 414 F.3d 518, 521 (4th Cir. 2005). The limitation period begins running from the latest of:
(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; or28 U.S.C. § 2244(d)(1)(A)-(D).
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Subsection (A) of section 2244(d)(1) requires the court to determine when Rawlings's judgment became final. See 28 U.S.C. § 2244(d)(1)(A). The North Carolina Supreme Court denied Rawlings's motion for discretionary review on December 18, 2014. Rawlings then had an additional 90 days to file a petition for a writ of certiorari in the United States Supreme Court. See Supreme Court Rule 13; Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Rawlings did not file a petition for a writ of certiorari in the Supreme Court of the United States. Accordingly, Rawlings conviction became final on January 19, 2015.
The limitation period under section 2244(d)(1) is tolled during the time that "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, 560 (4th Cir. 1999). Rawlings's MAR was already pending when his conviction became final. Thus, the limitations period was tolled until the Superior Court denied his MAR on April 7, 2016. The statutory period ran from April 7, 2016, until it expired on April 7, 2017. Rawlings's improperly filed petitions for writ of certiorari did not toll the limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (holding that improperly filed state postconviction petition "is not entitled to statutory tolling under § 2244(d)(2)."); see also Smith v. Woodard, 57 F. App'x 167 (4th Cir. 2003) ("pursuit of collateral review in the North Carolina Supreme Court was improperly filed, and did not toll his filing period."); Waldrup v. Hooks, No. 5:17-CV-00220-FDW, 2017 WL 6542514, at *2 (W.D.N.C. Dec. 21, 2017) ("Because Petitioner was not entitled to review in the North Carolina Supreme Court of either his MAR or the Court of Appeals' denial of his certiorari petition, . . . his pleadings in that court were not 'properly filed' applications for state post-conviction review and did not toll the statute of limitations"); Daleus v. Bell, No. 5:09-HC-2149-BO, 2011 WL 3606520, at n. 2 (E.D.N.C. Aug. 16, 2011) ("Petitioner's pro se certiorari petition filed . . . in the Supreme Court of North Carolina . . . does not toll the one-year period of limitation under 28 U.S.C. § 2244(d)(2) . . . The Supreme Court of North Carolina lacked authority to review this certiorari petition."). Rawlings did not file his petition in this court until April 14, 2017. Thus, absent equitable tolling, the district court must dismiss his petition as untimely.
Under the AEDPA, the one-year statute of limitations is subject to equitable tolling. Holland, 560 U.S. at 655. Equitable tolling applies only if a petitioner shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. (quotations omitted); see Green v. Johnson, 515 F.3d 290, 304 (4th Cir. 2008). A court may allow equitable tolling under section 2244 "in those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Green, 515 F.3d at 304 (quotations omitted); see Jackson v. Kelly, 650 F.3d 477, 491-92 (4th Cir.), cert. denied, 549 U.S. 1122 (2011). "[A]ny invocation of equity to relieve the strict application of a statute of limitations," however, "must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Harris, 209 F.3d at 330.
The merits of a petitioner's underlying claim are not relevant to whether extraordinary circumstances exist to justify the late filing of a petition for writ of habeas corpus. See Rouse v. Lee, 339 F.3d 238, 252 (4th Cir. 2003) (rejecting argument that a court "should consider the strength of the claims in a habeas petition when deciding whether equitable tolling is appropriate."); see also Helton v. Secretary, 259 F.3d 1310 (11th Cir. 2001) (stating that merits of underlying prosecution were not relevant to determination of "extraordinary circumstances"); Sullivan v. Ozmint, No. C/A 8:08-1088-GRABHH, 2008 WL 1994835, at *3 (D.S.C. Apr. 14, 2008), adopted by, No. 8:08-CV-1088-GRA-BHH, 2008 WL 2227237 (D.S.C. May 27, 2008). The fact that Rawlings filed this petition only a few days late is also not relevant to the equitable tolling analysis. Rouse, 339 F.3d 238 ("Failure to adhere to the AEDPA's precise filing deadlines, however, even by only a few days, would make navigating the AEDPA's timetable impossible. Such laxity would reduce predictability and would prevent us from treating the similarly situated equally . . . Accordingly, we look not to the length of the delay, but to the reasons for delay in determining whether equitable tolling is appropriate.") (quotation, citation, and alteration omitted)).
Rawlings's argument for equitable tolling is largely nonsensical and refers extensively to the procedural history of his related federal conviction on drug and firearm charges. Pet. at 13, D.E. 1; see United States v. Rawlings, Case No. 5:06-CR-160-1-BO. This argument is insufficient to establish equitable tolling. Any argument that his first certiorari filing was "lost in the mail", see, e.g., Pet'r. Resp. at 4, D.E. 20, likewise does not warrant equitable tolling. Harris v. Dye, No. 5:16CV208-FDW, 2017 WL 1237976, at *2 (W.D.N.C. Mar. 31, 2017) ("Having a legal filing lost in the mail is not an 'extraordinary' circumstance as that term is understood in the context of equitable tolling."); Sifford v. United States, No. 3:07-CR-97, 2011 WL 1135540, at *2 (W.D.N.C. Mar. 25, 2011) ("Petitioner's stated reasons for filing his motion late-that . . . his legal paperwork was lost in the mail—are not extraordinary and thus will not save his untimely motion."). Regardless, even if one of them was lost in the mail, Rawlings's improper certiorari filings in the North Carolina Supreme Court do not justify equitable tolling. See Smith, 57 F. App'x at 167; Waldrup, 2017 WL 6542514, at *2; Daleus, 2011 WL 3606520, at n. 2. Rawlings has not put forth any reason he did not or could not file the present petition within ADEPA's one-year statute of limitations period. Nor has Rawlings shown that he diligently pursued his rights or that any extraordinary circumstance prevented him from filing his petition in a timely manner. See Whiteside v. United States, 775 F.3d 180, 186 (4th Cir. 2014). Thus, his petition should be dismissed as time-barred.
C. Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases ("Habeas Rules") provides "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Having determined petitioner is not entitled to relief and respondent is entitled to dismissal of the petition, the court considers whether petitioner is still entitled to a certificate of appealability about one or more of the issues presented in his habeas petition.
A certificate of appealability may issue only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When the district court has adjudicated and denied a petitioner's constitutional claims on the merits, the petitioner must establish that reasonable jurists could debate whether the court should have decided the issue differently or show the issue is adequate enough to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
When a petitioner's constitutional claims are dismissed on procedural grounds, a certificate of appealability will not issue unless the petitioner can establish both "(1) 'that jurists of reason would find it debatable whether the petition [or motion] states a valid claim of denial of a constitutional right' and (2) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack, 529 U.S. at 484). "Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." Slack, 529 U.S. at 484-85.
After reviewing the claims presented in the habeas petition in light of the applicable standard, the court finds reasonable jurists would not find the court's treatment of any of Rawlings's claims debatable or wrong and none of the issue are adequate to deserve encouragement to proceed further. Accordingly, the undersigned recommends denying a certificate of appealability.
III. Conclusion
For the aforementioned reasons, the undersigned recommends that the district court grant respondent's motion for summary judgment (D.E. 14) and dismiss Rawlings's petition. The undersigned also recommends denying a certificate of appealability.
Furthermore, the court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on petitioner. Petitioner shall have until 14 days after service of the Memorandum and Recommendation on petitioner to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If petitioner does not file written objections to the Memorandum and Recommendation by the foregoing deadline, petitioner will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, petitioner's failure to file written objections by the foregoing deadline will bar petitioner from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: August 3, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge