Keever v. Perry
| Decision Date | 12 December 2016 |
| Docket Number | 3:16cv66-FDW |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | GARY CLYDE KEEVER, Petitioner, v. FRANK L. PERRY, Respondent. |
THIS MATTER is before the Court upon Petitioner Gary Clyde Keever's pro se Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1), and his Motion "Requesting Denial of Summary Judgment and Request for Evidentiary Hearing" (Doc. No. 11). Also before the Court is Respondent's Motion for Summary Judgment. (Doc. No. 6.)
On April 20, 2011, Petitioner was convicted by a Mecklenburg County jury of six counts of obtaining property by false pretenses, seven counts of making untrue statements or omissions of a material fact in connection with the offer or sale of a security, six counts of engaging in fraud or deceit in connection with the offer or sale of a security, one count of transacting business as a dealer or salesman in North Carolina who was not registered under the North Carolina Securities Act, and one count of selling a security in North Carolina that was not registered under the North Carolina Securities Act. State v. Keever, No. 12-342, 2012 WL 4879367, at *1-2 (N.C. Ct. App. Oct. 16, 2012). Petitioner testified in his own defense. Upon the jury's verdicts, the court consolidated all of the counts under three criminal complaint numbers and sentenced Petitioner to three consecutive terms of 116 to 149 months imprisonment. See id.
Petitioner filed a petition for writ of certiorari in the North Carolina Court of Appeals, which issued an opinion finding that no error had occurred in either Petitioner's trial or sentencing. See id. at *5. Petitioner then sought discretionary review in the North Carolina Supreme Court, which was denied on January 24, 2013. Petitioner did not seek further review in the United States Supreme Court.
Petitioner next filed a Motion for Appropriate Relief ("MAR") in Mecklenburg County Superior Court on June 5, 2013. (Consent Order, Pet'r's Ex. 1R 24, Doc. No. 14.) The court found that with the exception of Petitioner's claim of ineffective assistance of trial counsel, the claims raised in the MAR were procedurally barred because Petitioner was in a position to raise them on direct review but failed to do so. See Feb. 19, 2014 Order at 47, Keever v. Jackson, Civil Case No. 3:14cv641 (W.D.N.C. filed Nov. 19, 2014) (Doc. No. 1). The court ordered an evidentiary hearing be held on Petitioner's ineffectiveness claim and appointed counsel to represent him at the hearing. See id.
Prior to the evidentiary hearing, Petitioner's MAR counsel and the State arrived at a plea agreement, which the state court memorialized in a Consent Order signed by Petitioner, his attorney, the prosecutor, and the judge presiding over Petitioner's MAR. (Consent Order 24-27, Doc. No. 14.) Pursuant to the agreement, the court found that Petitioner had been denied his Sixth Amendment right to the effective assistance of counsel at trial, granted Petitioner relief, and vacated all of his convictions and sentences. (Consent Order 25-26, Doc. No. 14.)
On August 29, 2014, Petitioner entered an Alford plea to all of the counts for which he previously had been found guilty in 2011, as required by the terms of the plea agreement. (J. and Comm. Order, Resp't's Ex. 8, Doc. No. 8-9.) Judgment was consolidated under one Class Cfelony count; Petitioner was sentenced to a single 116-149 month term of imprisonment and given credit for the time he already had served under his original sentence. (J. & Comm.. Order, Doc. No. 8-9.) As part of the agreement, Petitioner waived his right to file a direct appeal or MAR challenging his convictions and sentence. (Consent Order 25, Doc. No. 14.)
Petitioner did not appeal his August 29, 2014 convictions or sentence. (Pet. 3, Doc. No. 1.) On or about November 19, 2014, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court, attacking the constitutionality of his April 20, 2011 criminal judgments. See § 2254 Pet., Civil Case No. 3:14cv641 (Doc. No. 1). The Court dismissed the petition on jurisdictional grounds, holding that when Petitioner filed it, he was in custody pursuant to his 2014 convictions and sentence, not his 2011 convictions. See Feb. 10, 2015 Order, 3:14cv641 (Doc. No. 2) (citing Maleng v. Cook, 490 U.S. 488, 490-93 (1989) (per curium)).
On March 12, 2015, Petitioner filed an MAR in Mecklenburg County Superior Court alleging various defects in the indictments on which his 2011 and 2014 convictions were based. (2015 MAR, Resp't's Ex. 9, Doc. No. 8-10.) It was dismissed on the merits on March 19, 2015. (Order Re MAR, Pet'r's Attach. 11 39, Doc. No. 1.) Petitioner sought a writ of certiorari in the North Carolina Court of Appeals, which was denied on May 22, 2015.
Petitioner filed the instant § 2254 habeas Petition on February 8, 2016. After conducting an initial review required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, this Court ordered Respondent to file an answer to the Petition. Subsequently, Respondent filed an Answer (Doc. No. 5), Motion for Summary Judgment (Doc.No. 6), and Supporting Brief (Doc. No. 8). In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was notified of his right to respond to the summary judgment Motion; he did so on November 28, 2016 (Doc. No. 14).
Summary judgment is appropriate in those cases where there is no genuine dispute as to any material fact, and it appears that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Where, however, the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
In the instant habeas Petition, Petitioner raises the following claims: that he received ineffective assistance of counsel related to his 2014 Alford plea (Ground One); that indictments charging him with offenses against Phillip Berrier were defective, thereby depriving the trial court of subject matter jurisdiction to enter judgment against him with regard to those offenses (Ground Two); that the trial court lacked subject matter jurisdiction over offenses against Ralph Berrier because the indictments alleged the offenses took place in the wrong location (Ground Three); and that his indictment for violating the North Carolina Securities Act was fatally flawed, depriving him of his right to due process (Ground Four). Respondent contends that all of these claims are barred by the statute of limitations. (Resp't's Supp. Br. 21-30, Doc. No. 8.)
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides astatute of limitation for § 2254 petitions by a person in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The petition must be filed within one year of the latest of:
Id. The limitations period is tolled during the pendency of a properly filed state post-conviction action. § 2244(d)(2).
Judgment was entered in this case on August 29, 2014. (J. & Comm. Order, Doc. No. 8-9.) Had Petitioner not waived his right to file a direct appeal, he would have had 14 days to enter a notice of appeal in the North Carolina Court of Appeals. See N.C. R. App. P. 4(a)(2). Therefore, Petitioner's judgment became final, at the latest, on or about September 12, 2014, when the time for seeking direct review expired. See § 2244(d)(1)(A).
The federal statute of limitation ran for 181 days until March 12, 2015, when Petitioner filed his MAR in the Mecklenburg County Superior Court. The limitation period was tolled until May 22, 2015, when the North Carolina Court of Appeals denied his petition for writ of certiorari. See § 2244(d)(2). The limitation period resumed and ran for another 184 days until it finally expired on Monday, November 23, 2015, more than two months before Petitioner filed the instant federal habeas Petition. Notably, the statute of limitation was not tolled while Petitioner's previous § 2254 habeas petition, filed in November 2014, was pending in this Court.See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (). Thus, absent equitable tolling or applicability of one of the other provisions of § 2244(d)(1), Petitioner's habeas petition is time-barred.
Petitioner contends that the statute of limitation does not apply to Grounds Two or Three because jurisdiction can be challenged at any time. See Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6, (2005) (...
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