Rouse v. Lee

• Decision Date: 11 August 2003
• Docket Number: No. 01-12.,01-12.
• Citation: 339 F.3d 238
• Parties: Kenneth Bernard Rouse, Petitioner-Appellant, v. R.C. Lee, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

339 F.3d 238

Kenneth Bernard Rouse, Petitioner-Appellant, v. R.C. Lee, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

No. 01-12.

United States Court of Appeals, Fourth Circuit.

Argued: April 2, 2003.

Decided: August 11, 2003.

Amended September 4, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, MAHER, WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for Appellant.

Clarence Joe DelForge, III, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

ON BRIEF: Robert M. Hurley, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant. Roy Cooper, Attorney General, William N. Farrell, Jr., Senior Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Before WILKINS, Chief Judge, and WIDENER, WILKINSON, NIEMEYER, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Williams wrote the majority opinion, in which Chief Judge Wilkins and Judges Widener, Wilkinson, Niemeyer, Traxler, and Shedd concurred. Judge DIANA GRIBBON MOTZ wrote a separate dissenting opinion in which Judges Michael, King, and Gregory joined.

OPINION

WILLIAMS, Circuit Judge:

A North Carolina jury convicted Kenneth Rouse of first-degree murder, robbery with a dangerous weapon, and attempted first-degree rape. Following a capital sentencing proceeding, the jury recommended the death penalty. Rouse was then sentenced to death for first-degree murder, forty years' imprisonment for armed robbery, and twenty years' imprisonment for attempted first-degree rape. More than one year after exhausting all state remedies, Rouse filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of North Carolina.¹ The district court dismissed Rouse's petition as untimely pursuant to the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C.A. § 2244(d) (West 1994 & Supp.2003).

Rouse appeals the district court's determination that neither statutory tolling nor equitable tolling of the AEDPA limitations period operated to render his federal habeas petition timely filed. Sitting en banc, we hold that Rouse's federal habeas petition was filed after the expiration of the 1-year AEDPA limitations period, including statutory tolling, and that because he has not shown any extraordinary circumstances beyond his control that prevented him from complying with the statute of limitations, he is not entitled to equitable tolling. Accordingly, we affirm the district court's dismissal of Rouse's petition as untimely.

I.

A.

In March 1992, Rouse was convicted of first-degree murder, armed robbery, and attempted first-degree rape. The relevant facts underlying petitioner's conviction are succinctly set forth in the Supreme Court of North Carolina's opinion affirming Rouse's conviction and sentence on direct appeal.

[Responding to a call,] [s]everal officers soon arrived at The Pantry [in Asheboro, North Carolina.] [Officer Hinshaw] heard a muffled sound coming from a storage room. He and Sergeant York, who had arrived at the scene, entered the room where they found defendant [Rouse] against a wall. Hinshaw aimed his gun at defendant, and defendant said, "I ain't got nothing, man."

Defendant had blood on him, especially on the front of his shirt, his pants, his hands, his waist, his legs and his underwear. There were abrasions on his knees. His pants were unzipped but fastened at the top. His belt was hanging off. Hinshaw ordered defendant to freeze and pinned him behind the door. Defendant was then handcuffed and taken out of the room. Lieutenant Charles Bulla searched defendant in the store and found in defendant's pocket three rolls of pennies in a plastic container. Defendant was then taken away. Defendant did not resist the officers at this or any time. No odor of alcohol was found on defendant's breath.

On the floor of the storage room was Hazel Colleen Broadway, lying in a pool of blood. She tried to tell Hinshaw something but soon died. Broadway was covered in blood. There were handprints on her body. She was wearing a blouse, and her pants had been pulled down to her feet.... [She had] a knife in [her] neck. The blade part of the knife was bent in a ninety-degree angle just below the handle.

More officers soon arrived at the scene who surveyed the store and collected evidence. The store was in disarray. A cigarette stand was overturned, and cigarettes were strewn about the floor. The cash register was turned sideways. Two empty rolls for pennies were on the floor. There was some other debris on the floor beside a trash can and some other penny rolls which seemed to have been knocked out of the safe. The bar stool behind the cash register had some blood on it. There were also spots of blood near the cash register....

... [B]lood on defendant's hands, shirt and underwear was consistent with samples of blood taken from the victim....

[The medical examiner] concluded that the victim died as a result of blood loss caused by a stab wound to the left neck, severing the carotid artery and jugular vein. A person could live ten to fifteen minutes after being stabbed in that location. In addition to the lethal knife wound, there were numerous other wounds to the victim including bruises, stab wounds and abrasions to her neck, chest, stomach, arms, shoulders, thighs, knee, palm, thumb, back, and elbow. Many of these were consistent with a sharp cutting instrument. Other injuries were consistent with a blunt instrument.

State v. Rouse, 339 N.C. 59, 451 S.E.2d 543, 548 (1994).

B.

On October 2, 1995, the United States Supreme Court denied Rouse's petition for a writ of certiorari. On April 19, 1996, Rouse filed a motion for appropriate relief (MAR) and over 100 pages of exhibits, including affidavits and interview transcripts, excerpts from the trial transcript, and letters, in the North Carolina Superior Court for Randolph County (the state MAR court). The state MAR court denied relief on the merits. State v. Rouse, Nos. 91-CRS-3316-17, 92-CRS-2 (N.C.Super.Ct. Aug. 2, 1996) (unpublished).² On October 10, 1996, Rouse filed an amended MAR based on intervening legislation,³ which was also denied. At the same time, the state MAR court denied Rouse's Motion for Production of Discovery and his motion for reconsideration of the dismissal of the original MAR. The Supreme Court of North Carolina granted Rouse's petition for writ of certiorari and remanded for reconsideration of Rouse's MAR in light of two North Carolina cases interpreting the new legislation. State v. Rouse, 510 S.E.2d 669 (1998) (citing State v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998), and State v. McHone, 348 N.C. 254, 499 S.E.2d 761 (1998)). On remand, the state MAR court again denied relief. This time, the Supreme Court of North Carolina denied the petition for writ of certiorari by order entered February 5, 1999.⁴

On February 8, 2000, Rouse filed a petition for a writ of habeas corpus in the district court. The State filed a motion to dismiss the petition as untimely. Pursuant to 28 U.S.C.A. § 636 (West 1993 & Supp. 2003), the petition was referred to a United States magistrate judge, who recommended that the district court dismiss the petition as untimely. Rouse filed detailed objections to the magistrate judge's recommendation, attaching several affidavits and a neuropsychological evaluation report. The district court "reviewed [Rouse's] objections... de novo and [found] they do not change the substance of the United States Magistrate Judge's rulings." (J.A. at 388.) Accordingly, the district court affirmed and adopted the magistrate judge's rulings and dismissed Rouse's petition as untimely. Rouse filed a motion to alter or amend the judgment, which the district court denied. Rouse filed a timely notice of appeal to this court.

A panel of this court reversed the district court's dismissal. Rouse v. Lee, 314 F.3d 698 (4th Cir.), vacated and reh'g en banc granted, (4th Cir. Feb. 13, 2003). Upon the State's suggestion, a majority of full-time, active circuit judges voted to rehear the case en banc. As Judge King granted a certificate of appealability, we proceed to address Rouse's statutory tolling and equitable tolling arguments below.

II.

The timeliness of Rouse's petition is governed by the AEDPA. The AEDPA was signed into law on April 24, 1996, and became effective immediately. In pertinent part, it provides that:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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....

28 U.S.C.A. § 2244(d)(1). For prisoners, like Rouse, whose convictions became final before the AEDPA was enacted, the one-year limitations period began to run on the AEDPA's effective date, and thus, they had until April 24, 1997, absent tolling, to file their federal habeas petitions. Hernandez v. Caldwell, 225 F.3d 435, 438-39 (4th Cir.2000). Rouse filed his federal habeas petition on February 8, 2000. Although the AEDPA limitations period is subject to both statutory tolling and equitable tolling, see Spencer v. Sutton, 239 F.3d 626 (4th Cir.2001), for the reasons discussed below, neither operated to render his petition timely filed.

A. STATUTORY TOLLING

The AEDPA explicitly provides that its one-year limitations period is tolled for "[t]he 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." 28 U.S.C.A. § 2244(d)(2). "[U]nder § 2244(d)(2) the entire period of state post-conviction proceedings, from...