Paradise v. Perry

• Decision Date: 03 August 2018
• Docket Number: No. 5:16-HC-02096-D,5:16-HC-02096-D
• Parties: Thomas Kenneth Paradise, Petitioner, v. Frank L. Perry and Nora Hunt, Respondents.
• Court: U.S. District Court — Eastern District of North Carolina

Thomas Kenneth Paradise, Petitioner, v. Frank L. Perry and Nora Hunt, Respondents.

No. 5:16-HC-02096-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

August 3, 2018

Order & Memorandum & Recommendation

Petitioner Thomas Kenneth Paradise, a state inmate proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (D.E. 1). This matter is before the court upon respondent's motion for summary judgment (D.E. 12). For the following reasons, the undersigned recommends that the district court grant respondent's motion for summary judgment.

I. Background

On May 5, 2011, Paradise pleaded guilty to second degree murder. Pet. at 1, D.E. 1. The trial court sentenced Paradise to 151 to 191 months imprisonment. Id. Paradise did not appeal. Id. at 2. On February 21, 2012, Paradise filed a motion for appropriate relief ("MAR") in Columbus County Superior Court. Id. at 3. The court denied the motion on May 22, 2013. Id. Paradise then waited nearly three years, until March 31, 2016, to file a petition for writ of certiorari in the North Carolina Court of Appeals. Id. The Court of Appeals denied Paradise's petition for certiorari on April 11, 2016. Id. at 4.

Paradise filed his § 2254 petition on April 29, 2016.¹ Pet. at 15, D.E. 1. His claims survived initial review (D.E. 8). Respondent filed this motion for summary judgment in November, 2017 (D.E. 12). Paradise initially failed to respond. Therefore, the court directed Paradise to show cause why his petition should not be dismissed for failure to prosecute (D.E. 17). Paradise responded to the show cause order by filing motions for counsel and for an extension of time (D.E. 20). The motion for counsel was denied (D.E. 22). Moreover, Paradise's filings did little to address the court's show cause order. Nonetheless, out of an abundance of caution, the court granted Paradise additional time to respond to the summary judgment motion. Id. Thereafter, Paradise filed a timely response (D.E. 23).²

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 noissue 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 provides that courts cannot grant habeas relief 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, nordoes 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).

1. 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; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D).

Subsection (A) of section 2244(d)(1) requires the court to determine when Paradise's judgment became final. See 28 U.S.C. § 2244(d)(1)(A). Here, because Paradise did not seek directreview in the North Carolina Court of Appeals, his conviction became final when the 14 day period to serve a notice of appeal expired. See N.C. R. App. P. 4(a)(2) (providing that notice of appeal may be filed within fourteen days of judgment); Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012). As a result, Paradise's conviction became final on May 19, 2011, fourteen days after his May 5, 2011 conviction. The statutory period then ran for 278 days until Paradise filed his MAR on February 21, 2012. See, e.g., Holland, 560 U.S. at 638; Hernandez, 225 F.3d at 438.

Ordinarily, the one-year statute of limitations would begin to run again at the "expiration of the period of time to seek further appellate review [of the state post-conviction motion]." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). That date is impossible to calculate with certainty in this case, however, because the North Carolina Rules of Appellate Procedure do not provide a firm deadline for prisoners to file a petition for writ of certiorari to review orders denying an MAR. See N.C.R. App. P. 21(e) (providing petitions for writ of certiorari to review orders denying an MAR shall be dismissed "in the event the petitioner unreasonably delays in filing the petition").

In Evans v. Chavis, 546 U.S. 189 (2006), the United States Supreme Court considered the effect of a similar California rule on § 2244(d)(2)'s tolling provision. Evans, 546 U.S. at 198-201. The California rule at issue provided that prisoners in California seeking appellate review of an adverse post-conviction ruling must file a new habeas petition with the California Supreme Court within a "reasonable time." Id. at 192-93. The Supreme Court held that "[i]n the absence of . . . clear direction or explanation from the California Supreme Court about the meaning of the term 'reasonable time' in the present context . . . [the district court] must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Id. at 198. The Court further explained that delays exceeding the time period for filing other types of appeals(such as direct appeals of criminal convictions or appeals in civil cases) should be considered unreasonable in most cases. See id. at 201.

The North Carolina Supreme Court has not defined the phrase "unreasonable delay" for purposes of North Carolina Rule of Appellate Procedure 21(e). Coley v. Hooks, No. 5:16-HC-2308-FL, 2018 WL 1570799, at *4 (E.D.N.C. Mar. 30, 2018); McConnell v. Beck, 427 F. Supp. 2d 578, 582 (M.D.N.C. 2006). Thus, under Evans, the court looks to the time periods for filing other appeals in North Carolina to determine when petitioner's right to seek appellate review of the order denying his MAR expired. Evans, 546 U.S. at 201; Taylor, 186 F.3d at 561 (section 2244(d)(1) statute of limitations tolled from the initial filing of motion for post-conviction relief until the expiration of the period of time to seek further appellate review); Coley, 2018 WL 1570799, at *4 .

In North Carolina, the time period for filing appeals is thirty days in civil cases and fourteen days in criminal cases. N.C.R. App. P. 3(c) & 4(a). The largest amount of time to seek appellate review is sixty days, which is reserved for post-conviction review of death penalty cases. N.C.R. App. P. 21(f). Because the 60-day period is...