Saguilar v. Harkleroad

• Decision Date: 14 December 2004
• Docket Number: No. 1:03CV01008.,1:03CV01008.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Jose Angel SAGUILAR, Petitioner, v. Sidney D. HARKLEROAD, Administrator of Marion Correctional Inst. and Theodis Beck, Secretary of the North Carolina Department of Correction, Respondents.

348 F.Supp.2d 595

Jose Angel SAGUILAR, Petitioner, v. Sidney D. HARKLEROAD, Administrator of Marion Correctional Inst. and Theodis Beck, Secretary of the North Carolina Department of Correction, Respondents.

No. 1:03CV01008.

United States District Court, M.D. North Carolina.

December 14, 2004.

Susan H. Pollitt, Raleigh, NC, for Petitioner.

Clarence Joe Delforge, III, N.C. Department of Justice, Raleigh, NC, for Respondent.

ORDER

OSTEEN, District Judge.

On September 16, 2004, the United States Magistrate Judge's Recommendation was filed and notice was served on the parties pursuant to 28 U.S.C. § 636. Petitioner filed objections to the Recommendation within the time limit prescribed by Section 636.

The Court has reviewed petitioner's objections de novo and finds they do not change the substance of the United States Magistrate Judge's rulings which are affirmed and adopted.

IT IS THEREFORE ORDERED that respondents' motion to dismiss (docket no. 5) is granted, that respondents' motion for summary judgment (docket no. 7) is denied for being moot, that the petition is denied (docket no. 1), that this action is dismissed, and that finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction nor a debatable procedural ruling, a certificate of appealability is denied.

RECOMMENDATION OF MAGISTRATE JUDGE ELIASON

ELIASON, United States Magistrate Judge.

Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 30, 1999, petitioner was convicted in the Superior Court of Forsyth County of seven counts of trafficking in cocaine and two counts of conspiracy to traffic in cocaine in cases 98 CRS 52399-411. He was subsequently sentenced to nine consecutive sentences of 35 to 42 months of imprisonment. He appealed his convictions, but the North Carolina Court of Appeals, in an opinion issued on August 1, 2000, found no error in his trial or sentences. Petitioner did not seek discretionary review from the North Carolina Supreme Court. However, over a year later, in September 2001, petitioner filed a petition for a writ of certiorari with the North Carolina Supreme Court. This was denied on January 31, 2002 by an order, and certified to the North Carolina Court of Appeals on February 4, 2002.

Following his direct appeal and his attempt at a grant of certiorari from the North Carolina Supreme Court, petitioner began to seek collateral review of his convictions and sentences. He did so by filing a motion for appropriate relief in Forsyth County on November 7, 2002. When this was denied, he unsuccessfully sought certiorari from the North Carolina Court of Appeals which denied the request on September 17, 2003. Shortly thereafter, petitioner submitted his habeas petition to this Court.

Respondents request dismissal on the ground that the petition was filed outside of the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132 ("AEDPA"). 28 U.S.C. § 2244(d)(1).¹ The AEDPA amendments apply to all Section 2254 petitions filed after its effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

The limitation period starts running on the date when the judgment of conviction becomes final at the end of direct review. Harris v. Hutchinson, 209 F.3d 325 (4th Cir.2000). However, it is tolled while state post-conviction proceedings are pending. Harris, supra. The suspension is for "the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review)." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir.1999), cert. denied, 528 U.S. 1197, 120 S.Ct. 1262, 146 L.Ed.2d 117 (2000). However, the tolling does not include the time to file a certiorari petition to the United States Supreme Court from denial of state post-conviction relief. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000).

The central issue in this case centers on the question of when petitioner's convictions became final for purposes of AEDPA. The applicable portion of the statute itself states that the one-year limitation period shall begin to run on "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. § 2244(d)(1). Although the language of the statute seems clear enough on its face, the parties have differing views as to when direct review of petitioner's convictions ended.

Respondents assert that North Carolina's direct review process begins with an appeal from the trial court to the North Carolina Court of Appeals. Once a decision is rendered, a mandate issues and the parties then have 15 days to file a notice of appeal with the North Carolina Supreme Court where there is an appeal of right and/or a petition for discretionary review for issues where there is not an appeal of right. See N.C. R.App. P. 14(a) & 15(b). The mandate shall issue twenty days after the opinion is filed, unless otherwise ordered. N.C. R.App. P. 32(b). Respondents argue that if a notice of appeal or a petition is not filed within 35 days of a decision by the North Carolina Court of Appeals, direct review ends and the conviction becomes final. See Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (for federal cases, finality occurs when the time for noticing review expires).

Using this method of calculating finality, petitioner's convictions became final on September 5, 2000. The limitation period would have begun to run on that day and would have expired one year later without petitioner having filed anything further. His next filing was a petition for certiorari filed with the North Carolina Supreme Court in September 2001. As will be seen, this necessarily would have to be a petition filed pursuant to N.C. R.App. P. 21.²

To a point, petitioner agrees with respondents' description of the direct review process in North Carolina. However, petitioner believes that additional steps, specifically a review by the North Carolina Supreme Court and at least the option for review by the United States Supreme Court, must be completed to create finality.

North Carolina Rule of Appellate Procedure 21(a)(2) allows a party to file a petition for certiorari seeking review of the Court of Appeals' decision when the party has lost his "right to prosecute an appeal of right or to petition for discretionary review by failure to take timely action." According to petitioner, his convictions could not become final until he had filed such a petition with the North Carolina Supreme Court, and if his petition for certiorari were denied (as it was), he then had 90 more days to file a petition for certiorari with the United States Supreme Court. If this is the case, plaintiff's convictions did not become final, and the one-year limitation period did not begin to run until May 6, 2003. His petition to this Court would be timely under this scenario.

The only real disagreement between the parties is whether a N.C. R.App. P. 21 petition for certiorari to the North Carolina Supreme Court, for the purposes of seeking an out-of-time review of a decision made by the North Carolina Court of Appeals on direct review, constitutes a part of the direct review process in North Carolina. For several reasons, the Court concludes that it does not.

The first basis for rejecting petitioner's argument is the very language of N.C. R.App. P. 21 which allows the writ of certiorari to be issued. That Rule is in a section entitled "Extraordinary Writs." See n. 1. This title alone suggests that writs of certiorari are something apart from the normal direct review process. However, even more convincing is the language of the Rule itself which states that writs of certiorari may be issued to allow review of a lower court's decision when "the right to prosecute an appeal of right or to petition for discretionary review has been lost by failure to take timely action; or for review of orders of the Court of Appeals when no right of appeal exists." N.C. R.App. P. 21(a)(2). This language again suggests that the petition for certiorari is outside of the direct review process because it is used only when an appeal process does not exist or has ended. Were the N.C. R.App. P. 21 petition for certiorari a form of direct review, then the right to appeal would exist at that point in time or else would not have been lost. In either case, N.C. R.App. P. 21 would not be applicable by its own terms.

There is also some case law support for respondents' view that a writ of certiorari under N.C. R.App. P. 21 does not constitute a part of the direct review process. See State v. Niccum, 293 N.C. 276, 238 S.E.2d 141 (1977) (petition for certiorari may be used when no right to an appeal exists); Little v. City of Locust, 83 N.C.App. 224, 349 S.E.2d 627 (1986), rev. denied, 319 N.C. 105, 353 S.E.2d 111 (1987) (certiorari, which has the effect of an appeal by allowing review, was devised as a substitute for appeal). These and similar cases suggest that a petition for certiorari is separate from the direct review process, and is in the nature of an extraordinary writ. See n. 1.

Finally, the State's interest in having an end point requires that N.C. R.App. P. 21 petitions for certiorari not be considered as part of the direct review process in North Carolina. A person convicted of a crime has a short period of time after a judgment is entered to file a notice of appeal and to perfect that appeal with the North Carolina Court of Appeals. Following an unsuccessful appeal, as discussed above, he has 35 days to file an appeal or petition for discretionary review with the North Carolina Supreme Court. N.C....