Opinion
1:02CV00853
September 15, 2003
MEMORANDUM OPINION AND ORDER
Petitioner Steven Antwone Watson, a prisoner of the State of North Carolina, on April 14, 1999, in the Superior Court of Guilford County, was convicted after trial by jury of two counts of first-degree murder. On April 16, he was sentenced to two life sentences by Superior Court Judge Sanford L. Steelman, Jr., Petitioner appealed, but on June 19, 2001, the North Carolina Court of Appeals issued an unpublished opinion finding no error. State v. Watson, No. COAOO-428 (N.C.App., June 19, 2001). Petitioner was represented at trial by attorneys J. Douglas Henderson and Kevin B. Morse and on appeal by attorney Edwin L. West, III.
The state court records indicate that Petitioner did not file a notice of appeal or petition for discretionary review (PDR) to the Supreme Court of North Carolina as authorized by N.C.R. of App. P., Rules 14 and 15 (2003). Subsequently, on September 21, 2001, Petitioner submitted a state habeas corpus petition to the Supreme Court of North Carolina raising a claim that his "short-form" indictment caused the trial court to lack jurisdiction. The Supreme Court of North Carolina denied habeas relief on September 25, 2001.
Petitioner dated his habeas corpus petition to this court September 22, 2002, and it was stamped filed October 4, 2002. For purposes of Respondent's status of limitations defense, the Court will use September 22, 2002, as Petitioner's date of filing.
Claims of the Petition
In his petition, Petitioner Watson contends that (1) the prosecutor made improper arguments expressing his personal opinion of Petitioner's guilt and commented on his decision not to testify; (2) his conviction was obtained through false evidence and the knowing use of perjured testimony; (3) his conviction was obtained through the use of non-tested evidence; (4) his conviction was obtained through insufficient evidence; (5) his conviction was obtained through a poor investigation; and (6) his conviction was obtained through constant errors by the trial court. Respondent has responded to the habeas petition by moving for its dismissal on statute of limitations grounds. For reasons set out below, the Court will grant the motion to dismiss.
Discussion
Petitioner's case became final for purposes of direct review 35 days after the June 19, 2001 opinion of the Court of Appeals, i.e., July 24, 2001. See N.C.R. of App. P., Rule 15(b) (2003) (petition for discretionary review (PDR) may be filed within 15 days after issuance of the mandate by the Court of Appeals); N.C.R. of App. P., Rule 32(b) (2003) (mandate issues 20 days after written opinion unless court orders otherwise). Petitioner did not file a PDR to the Supreme Court of North Carolina. The United States Supreme Court has no jurisdiction to review, by way of certiorari, intermediate state appellate court rulings when, as here, the petitioner fails to seek available review in the highest court of the State. See 28 U.S.C. § 1257; see also Sup.Ct. R. 13.1 and 13.2 ("The Clerk will not file any petition for a writ of certiorari that is jurisdictionally out of time.") Accordingly, Petitioner cannot benefit from an additional 90 days of tolling for purposes of filing a certiorari petition to the United States Supreme Court. If Petitioner had filed a certiorari petition in the United States Supreme Court seeking review of the North Carolina Court of Appeals' opinion, the petition would have been "improperly filed" because the Supreme Court lacked jurisdiction under § 1257 and Rule 13.1. Cf. Artuz v. Bennett, 531 U.S. 4 (2000) ("properly filed" state post-conviction application must be filed in accordance with state rules concerning form of document, applicable time periods and proper court and office for filing).
Petitioner's one-year period of limitation ran from July 24, 2001, for 59 days until he submitted his state habeas petition to the Supreme Court of North Carolina, dated September 21, 2001. See 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."). After the Supreme Court of North Carolina denied habeas relief on September 25, 2001, Petitioner's one-year period commenced running again and fully expired 306 days later on Monday, July 29, 2002.
In this action, Petitioner dated his pro se federal habeas application form September 22, 2002. As such, it is approximately two months out-of-time. Absent some basis for relief from the statute of limitations, Petitioner is barred from proceeding due to the untimeliness of his petition.
Petitioner seeks equitable tolling of the statute of limitations on grounds that his attorney misadvised him as to the date of the running of the statute. See Pleading No. 9 at 4. Equitable tolling, however, is reserved for various circumstances wherein the petitioner has been prevented from asserting his claims by wrongful conduct of the respondent, or extraordinary circumstances beyond the petitioner's control have prevented a timely filing. See Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000). In a non-capital case such as that at bar, misadvice of counsel as to the expiration date of the statute of limitations is not an extraordinary circumstance that will support equitable tolling. Id.