MALDONANDO v. HOOKS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

COREY F. MALDONADO, )

)

Petitioner, )

)

v. ) 1:19CV671

)

ERIK A. HOOKS, Secretary, )

North Carolina Department of )

Public Safety, et al., )

)

Respondents. )

MEMORANDUM OPINION AND RECOMMENDATION

OF 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. (Docket

Entry 1; see also Docket Entry 2 (“Petitioner[’s] Supporting

Affidavit”).) Respondent has moved to dismiss on grounds of

untimeliness. (Docket Entries 5, 6.) For the reasons that follow,

the Court should grant Respondent’s Motion to Dismiss and dismiss

the Petition as untimely.

I. Procedural History

On April 7, 2005, in the Superior Court of Rowan County,

Petitioner pled guilty to first degree murder in case 03CRS58341.

(See Docket Entry 1, ¶¶ 1, 4, 6; see also Docket Entry 6-2.) In

accordance with the plea agreement (see Docket Entry 6-2 at 3), the

state dismissed the attempted robbery with a dangerous weapon and

conspiracy to commit robbery with a firearm charges (see id. at 5),

and the trial court sentenced Petitioner to life in prison without

the possibility of parole (see Docket Entry 1, @ 3; see also Docket

Entry 6-3).! Petitioner did not appeal. (See Docket Entry 1,

q 8.)

Many years later, Petitioner submitted a pro se motion for

appropriate relief (“MAR”) to the trial court (see Docket Entry 1,

Wi 10, ll(a); see also Docket Entry 6-5), which Petitioner dated as

Signed on October 19, 2018, (see Docket Entry 6-5 at 48-50), and

which that court accepted as filed on November 5, 2018 (see Docket

Entry 6-6 at 2 (order denying MAR reflecting MAR’s filing date)).

The trial court denied Petitioner’s MAR on December 20, 2018. (See

Docket Entry 1, 7 (7), (8); see also Docket Entry 6-6 at 2-4.)

Subsequently, Petitioner submitted a petition for writ of

certiorari to the North Carolina Court of Appeals seeking review of

the trial court’s denial of Petitioner’s MAR (see Docket Entry 1,

{ l1(b); see also Docket Entry 6-7), which Petitioner signed as

dated on January 9, 2019 (see Docket Entry 6-7 at 29-31), and which

that court accepted as filed on January 18, 2019 (see Docket Entry

1, @ 11(b) (3); see also Docket Entry 6-7 at 2). The Court of

Appeals denied that petition on January 24, 2019. (See Docket

Entry 1, @ 11(b) (7); see also Docket Entry 6-8 at 2.) Petitioner

sought review of the Court of Appeals’s denial of his certiorari

petition via a petition for discretionary review (“PDR”) in the

‘ Throughout this Memorandum Opinion, pin citations to page numbers refer

to the page numbers that appear in the footer appended to documents upon their

docketing in the Court’s CM/ECF system.

North Carolina Supreme Court (see Docket Entry 1, I 11(c); see also

Docket Entry 6-9}, which he dated as signed on February 11, 2019

(see Docket Entry 6-9 at 41-43), and which that court accepted as

filed on February 26, 2019 (see Docket Entry 1, @ 11(c) (3), see

also Docket Entry 6-9 at 2). The North Carolina Supreme Court

dismissed the PDR by order dated May 9, 2019. (See Docket Entry 1,

l1l(c) (7), (8); see also Docket Entry 6-10.)

Petitioner then submitted the instant Petition on or about

June 20, 2019. (See Docket Entry 1-1 (reflecting date of June 20,

2019, on cover letter conveying instant Petition).)* Respondent

moved to dismiss on grounds of untimeliness (Docket Entries 5, 6),

and Petitioner responded in opposition (Docket Entry 8). For the

reasons that follow, the Court should grant Respondent’s Motion to

Dismiss, because Petitioner submitted his Petition outside of the

one-year limitations period.

II. Grounds for Relief

The Petition raises four grounds for relief:

1) “[t]o obtain the felony murder plea the state was not

required to establish all of the essential element [sic]

of the plea of first degree felony murder indictment

[sic]” (Docket Entry 1, I 12(Ground One); see also id.,

* Ordinarily, under Rule 3(d) of the Rules Governing Section 2254 Cases in

United States District Courts, the Court deems Section 2254 petitions as filed

on the date the petitioner signs the petition, under penalty of perjury, as

submitted to prison authorities. In this case, the Petition reflects “6/ /19”

as the date Petitioner submitted the instant Petition to prison authorities

(Docket Entry 1 at 15) and thus the Court could use the date the Clerk’s office

stamp-filed the document, i.e., July 1, 2019 (see Docket Entry 1 at 1), as the

filing date. However, as described in more detail below, even if Petitioner had

submitted the Petition to prison authorities as early as June 20, 2019, those

extra 11 days would make no difference in the timeliness analysis.

{ 12(Ground One) (a) (alleging as “[s]upporting facts”

that “the state was allowed to only satisfy only [sic]

one of the essential elements; while dismissing the

underlying felony offence [sic]”));

2) “fundamental miscarriage of justice” (id., 7 12 (Ground

Two)) “for those reasons set out in the attached

affidavit and corporated [sic] [MAR], petition for

certiorari and [PDR] issue [sic], referred to herein by

reference as if fully set out herein” (id., (Ground

Two) (a));

3) “ineffective assistance of counsel” (id., J (Ground

Three)), in that “counsels [sic] ill-adviced [sic]

induced this [P]letitioner into duress, and into a [sic]

involuntary plea and withheld intervening causes of the

alleged victim’s death” (id., 7 (Ground Three) (a)); and

4) “the trial court allowed co-defendant’s testimonial

hearsay statement to be used as the factual basis for the

plea” (id., @ 12(Ground Four); see also id., JI 12 (Ground

Four) (a) (referencing “corporated [sic] [MAR], petition

for writ of certiorari and [PDR], and attached affidavit”

as setting out “[s]upporting facts”) .°

III. Discussion

Respondent seeks dismissal of the Petition on the grounds that

Petitioner filed it outside of the one-year limitations period of

the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), see 28 U.S.C. § 2244 (d) (1). (See Docket Entry 6 at 3-

16.) In order to assess Respondent’s statute of limitations

argument, the Court must first determine when Petitioner’s one-year

period to file his Petition commenced. The United States Court of

Appeals for the Fourth Circuit has explained:

° For ease of reading, when quoting from Petitioner’s filings, the Court

applies standard capitalization conventions.

Under § 2244(d)(1)(A)-(D), the one-year limitation period

begins to run from the latest of several potential

starting dates:

(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.

Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008). The Court

must determine timeliness on claim-by-claim basis. See Pace v.

DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).

Respondent correctly contends that the Petition qualifies as

untimely under subparagraph (A). (Docket Entry 6 at 3-7.)4 North

4 Neither Petitioner nor Respondent argue that subparagraphs (B), (C), or

(D) apply in this situation. (See Docket Entries 1, 2, 6, 8.) Moreover, the

plain language of subparagraphs (B) and (C) confirms that they have no possible

application, as Petitioner’s Grounds for Relief do not assert a state-created

“impediment to filing” the instant Petition, 28 U.S.C. § 2244(d)(1)(B), or invoke

a new “constitutional right” recognized by the United States Supreme Court and

“made retroactively applicable to cases on collateral review,” 28 U.S.C.

§ 2244(d)(1)(C). Furthermore, subparagraph (D) could not apply because

Petitioner knew, or through exercise of due diligence should have known, of the

factual predicates of Grounds for Relief One and Four since the time of his

guilty plea and judgment on April 7, 2005. (See Docket Entry 1, ¶ 12(Ground

(continued...)

5

Carolina limits the ability of individuals who plead guilty to

appeal their convictions as a matter of right. See N.C. Gen. Stat.

§ 15A-1444. Here, the trial court sentenced Petitioner to life in

prison without the possibility of parole (see Docket Entry 6-3},

and that sentence constituted the only lawful sentence other than

death for a Class A felony, regardless of prior record level, see

N.C. Gen. Stat. § 15A-1340.17(c) (version effective from December

1, 1997, to November 30, 2009, applicable to Petitioner’s offense

on August 11, 2003). Therefore, Petitioner could not appeal his

conviction as a matter of right, see N.C. Gen. Stat.

§ 15A-1444(al), and Petitioner’s conviction finalized under

“(...continued)

One), (Ground Four).) To the extent Petitioner bases Grounds Two and Three on

his allegation that, at the time of his plea, his trial counsel conspired with

the prosecution to withhold from Petitioner the fact that the victim’s wife

removed life support from the victim, i.e., the alleged intervening cause,

Petitioner still has not shown that subparagraph (D) applies. “[Pletitioner

bears the burden of proving that he exercised due diligence, in order for the

statute of limitations to begin running from the date he discovered the factual

predicate of his claim... .” DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir.

2006). In his filings, Petitioner does not state when he supposedly first

learned that the victim survived for ten weeks in hospital after the shooting

until the victim’s wife removed life support (see Docket Entries 1, 2, 6-5, 6-7,

6-9, 8), stating only that “the prosecuting attorney and defence [sic] attorneys

. . . didn’t disclose [the fact that the victim’s wife removed life support] to

the trial court [Jor to [ Pletitioner until after the plea had been accepted by

the trial judge when this portion of the discovery was provided to [ PJletitioner”

(Docket Entry 8 at 3). Absent such allegations, Petitioner has not demonstrated

the necessary “due diligence” for application of subparagraph (D). See Freeman

v. Aavaras, 467 F. App’x 770, %775 (10th Cir. 2012) (refusing to apply

subparagraph (D) where petitioner failed to explain why he could not have

discovered factual predicate of claim earlier); Farabee v. Clarke, No. 2:12CV76,

2013 WL 1098098, at *3 (E.D. Va. Feb. 19, 2013) (unpublished) (finding

subparagraph (D) inapplicable where the petitioner’s “threadbare” allegations

failed to explain inability to discover predicate earlier), recommendation

adopted, 2013 WL 1098093 (E.D. Va. Mar. 13, 2013) (unpublished); Norrid v.

Quarterman, No. 4:06CV403, 2006 WL 2970439, at *1 (N.D. Tex. Oct.16, 2006)

(unpublished) (concluding that the petitioner bore burden of demonstrating

applicability of subparagraph (D)); Frazier v. Rogerson, 248 F. Supp. 2d 825, 834

(N.D. Iowa 2003) (refusing to apply subparagraph (D) when the petitioner “never

identifie[d] when or how he discovered his ‘new evidence’”). Accordingly,

subparagraph (D) does not apply.

subparagraph (A) on April 7, 2005 - the day the trial court signed

the judgment and commitment forms in his criminal case (see Docket

Entry 6-3). See Hairston v. Beck, 345 F. Supp. 2d 535, 537

(M.D.N.C. 2004) (finding that, because the petitioner lacked right

to appeal, limitation period ran from day of judgment) (Osteen,

Sr., J., adopting recommendation of Dixon, M.J.).°

Petitioner’s one-year period under AEDPA then ran, unimpeded,

from April 7, 2005, until it expired one year later on Friday,

April 7, 2006. Because Petitioner did not file the instant

Petition until, at the earliest, June 20, 2019, that filing remains

more than 13 years out of time. Moreover, because (as detailed

above) Petitioner submitted all of his post-conviction filings well

after AEDPA’s one-year statute of limitations had already run, none

of those belated filings could toll the limitations period, see

Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000) (finding that

state filings made after expiration of federal limitations period

do not restart or revive that period).

In the paragraph of the Petition that directs Petitioner to

“explain why the one-year statute of limitations as contained in

[AEDPA] does not bar [his P]letition,” Petitioner states as follows:

° Further, “[e]lven if Petitioner had a right to appeal, [] it would have

fully expired [14] days later on Thursday, [April 21], 2005.” (Docket Entry 6

at 4 (citing N.C. R. App. P. 4(a) (2) (allowing 14 days to appeal from criminal

judgment) Accordingly, even including a right to appeal, Petitioner’s

judgments finalized, at_the latest, on April 21, 2005. See Gonzalez v. Thaler,

565 U.S. 134, 149-50 (2012) (holding that a petitioner’s case becomes final when

the time for pursuing direct review expires). Those 14 extra days would not

affect the timeliness analysis.

(1). Petitioner suffers from a fundamental miscarriage of

justice, (2) Petitioner is actual factual innocence

[sic], via intervening causes asserted state failed to

establish all essential elements of the underlying

offense, (3) mental delayed [sic] as asserted in

exhausted state court filing, judicial notice requested

as to those corporated [sic] filings [sic] issues and

questions presented therein. Especially mentally delayed

after obtaining a G.E.D. as a matter of course provided

mentally delaye [sic] individuals, as right to file a

timely 2254 issues, as set out in the attached affidavit.

As this 2254 petition constitutional issues is [sic]

articulated pursuant to Class v. United States, 2018 U.S.

Lexis 1378 (2018), also per United States v. Mitchell, 1

F.3d 235 (4th Cir. 1993), given these reasonings [sic]

and those circumscribed by Section 15A-2005 applications,

which this [P]etitioner suffers from a miscarriage of

justice that seizd [sic] his actual innocence by

suppression [sic] intervening causes during the plea

proceedings from the trial judge in which had the judge

been informed of the intervening cause it is likely that

the trial court would not [sic] accepted the induced

plea, as defense counsel assured [ P]etitioner that he

would be executed because the alleged victim was white[.]

Even though defense lawyers and prosecution was [sic]

aware that the alleged victims [sic] wife took the

victim’s life which was the primary intervening causes

[sic] withheld from the trial judge[,] that the wife

ended the alleged victim’s life[.]

Also this Petitioner respectfully ask [sic] this

honorable [C]ourt to excuse any proposed default, for

those reasons asserted in the attached affidavit.

(Docket Entry 1, ¶ 18; see also Docket Entry 2 (“[P]etitioner

respectfully seeks leave of the [C]ourt pursuant to McQuggin [sic]

v. Perkins, 133 S. Ct. 1924, 1931-32 (2013) standing and exceptions

due to his asserted claims of actual and factual innocence, and

fundamental miscarriage of justice, and his mentally delayed

intelligent disability at the time of his plea . . . . [P]etitioner

further subscribe [sic] [] that his acquired guilty plea is the by

8

product of an induced plea agreement [and] that but for asserted

constitutional violations no reasonable factfinder would have found

[] [P]etitioner guilty of the underlying offense.”); Docket Entry

8 at 2 (arguing that the Court should excuse the Petition’s

untimeliness because (1) “Petitioner is actual and factual

innocence [sic],” (2) “he suffers from a fundamental miscarriage of

justice,” (3) “at the time of [ P]etitioner’s offenses came about

[sic] that he was mentally delayed and possessed an intellectual

function [sic] and disability below 70 I.Q.,” and (4) “Petitioner

enter [sic] the contested guilty plea under duress and ill-advice

[sic] of defense counsel who was laboring under a conflict of

interest, with deficient performance constituting structural error

inherently”).)

Petitioner’s pro se filings in this matter, as described

above, lack coherence and conflate various different legal

concepts, such as fundamental miscarriage of justice/actual

innocence, structural error, ineffective assistance of counsel,

procedural default, and untimeliness. (See Docket Entries 1, 2,

8.) After liberally construing Petitioner’s filings as required by

Haines v. Kerner, 404 U.S. 519 (1972), Petitioner appears to allege

that 1) he qualifies for the actual innocence exception to the one-

year limitations period recognized in McQuiggin v. Perkins, 569

U.S. 383 (2013) (see Docket Entry 1, ¶ 18; see also Docket Entry 2

at 3-8, 18-20; Docket Entry 8 at 1-3, 5-6, 8-13, 15, 16-17); 2) his

9

low IQ and intellectual disability should excuse his late filing

(see Docket Entry 1, ¶ 18; see also Docket Entry 2 at 2, 5, 8, 11,

19, 20; Docket Entry 8 at 2, 3, 15); and 3) the ineffective

assistance of his trial counsel amounted to structural error that

should overcome Petitioner’s non-compliance with the statute of

limitations (see Docket Entry 1, ¶ 18; see also Docket Entry 2 at

6-19; Docket Entry 8 at 2-7, 16). As discussed in further detail

below, none of those arguments establish a basis for overcoming the

Petition’s untimeliness.

A. Fundamental Miscarriage of Justice/Actual Innocence

Petitioner first maintains that he “is actual factual

innocence [sic], via intervening causes asserted state failed to

establish all essential elements of the underlying offense.”

(Docket Entry 1, ¶ 18.) More specifically, Petitioner asserts

“that the alleged victim was put to death by his own wife who made

an independent decision to end the alleged victim’s life after he

contracted acute pneumonia” (Docket Entry 2 at 6-7) by “taking him

off life support resulting in death . . . after some ten weeks of

being hospitalized” (Docket Entry 8 at 12). In that regard,

Petitioner contends that “the asserted intervening causes

insulate[d P]etitioner [from] first degree and/or second degree

murder culpability and [] the withholding of the asserted

intervening causes from the trial judge during the course of

accepting [ P]etitioner’s plea to first degree murder subject[ed

10

P]letitioner to a fundamental miscarriage of justice.” (Id. at 13.)

According to Petitioner, the alleged intervening cause satisfies

the actual innocence standard of Schlup v. Delo, 513 U.S. 298

(1995) (see Docket Entry 8 at 11-12), and “[a]Jllows the gate to

open even under the McQuiggin[ ] statute of limitations objections”

(id. at 12).

The United States Supreme Court has recognized that a showing

of actual innocence may excuse noncompliance with the one-year

limitations period. See McQuiggin, 569 U.S. at 386. However, the

Supreme Court also ruled that showings of actual innocence “are

rare,” and that a petitioner must demonstrate that no reasonable

juror could vote to find the petitioner guilty beyond a reasonable

doubt. Id.; see also United States v. Jones, 758 F.3d 579, 583

(4th Cir. 2014) (noting that “substantial claim[s] of actual

innocence are extremely rare” (quoting Schlup, 513 U.S. at 321)).

Moreover, “‘[a]ctual innocence’ means factual innocence, not mere

legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623

(1998). “To be credible, such a claim requires [a] petitioner to

support his allegations of constitutional error with new reliable

evidence — whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence —

that was not presented at trial.” Schlup, 513 U.S. at 324. The

reviewing court must consider “all of the evidence, old and new,

incriminating and exculpatory, without regard to whether it would

11

necessarily be admitted under the rules of admissibility that would

govern at trial.” House v. Bell, 547 U.S. 518, 538 (2006)

(internal quotation marks omitted). For the reasons that follow,

Petitioner has fallen far short of that stringent standard.

As an initial matter, Petitioner’s allegations regarding the

circumstances of the victim’s death do not qualify as “reliable

evidence” and/or a “trustworthy eyewitness account,” Schlup, 513

U.S. at 324. For example, Petitioner has failed to offer any

proof, beyond his own bald assertions, that the victim survived for

ten weeks in hospital, developed acute pneumonia, and died after

his wife removed life support. (See Docket Entries 1, 2, 6-5, 6-7,

6-9, 8.) Similarly, Petitioner has not explained the basis of his

knowledge of those alleged circumstances. (See id.) Petitioner’s

failure to proffer “reliable evidence” in support of his actual

innocence claim precludes relief. See McDowell v. Lemke, 737 F.3d

476, 483–84 (7th Cir. 2013) (deeming “inherently suspect” the

petitioner’s “eleventh hour” self-serving affidavits containing no

indicia of reliability (internal quotation marks omitted)); Kuenzel

v. Allen, 800 F. Supp. 2d 1162, 1181 (N.D. Ala. 2009) (“To permit

such self-serving testimony to suffice would set the bar ‘so low

that virtually every [actual innocence] claimant would pass through

it.’” (quoting Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir.

2004))).

12

More significantly, however, under North Carolina law, the

removal of life support by the victim’s wife (if it even occurred)

does not constitute new, reliable evidence of Petitioner’s actual

innocence of the charge of first degree murder of the victim. The

appellate courts in North Carolina have long recognized that the

“[d]efendant’s act does not have to be the sole proximate cause of

death,” and that “[i]t is sufficient that the act was a proximate

cause which in combination with another possible cause resulted in

[the victim]’s death.” State v. Messick, 159 N.C. App. 232,

237-38, 585 S.E.2d 392, 395 (2003) (emphasis added) (citing State

v. Gilreath, 118 N.C. App. 200, 454 S.E.2d 871 (1995), and State v.

Minton, 234 N.C. 716, 68 S.E.2d 844 (1952)), aff’d, 358 N.c. 145,

593 S.E.2d 583 (2004). Put another way, “[t]o escape

responsibility [for murder] based on an intervening cause, the

defendant must show that the intervening act was “the sole cause of

death.” State v. Holsclaw, 42 N.C. App. 696, 699, 257 S.E.2d 650,

652 (1979) (emphasis added).

The North Carolina Court of Appeals’s application of

Holsclaw’s “sole cause of death” standard in two later cases

provides further clarity as to the state of North Carolina law with

regard to intervening causes in the context of murder charges.

First, the Court of Appeals reasoned as follows:

[The dJefendant contends, based on the testimony of [a

physician], that [the victim’s] refusal to accept a blood

transfusion was an independent and intervening cause of

death, such as to cut off any responsibility [the]

13

defendant may have in the victim’s death. However, it is

clear from the evidence that [the victim’s] act in

declining a blood transfusion was not “the sole cause of

death.” [Holsclaw, 42 N.C. App. at 699, 257 S.E.2d at

652]. Indeed, all of [the victim’s] injuries resulted

from the stabbing inflicted by [the] defendant. Thus,

but for [the] defendant’s act, [the victim] would not

have been in need of a blood transfusion.

State v. Welch, 135 N.C. App. 499, 503, 521 S.E.2d 266, 268 (1999).

Subsequently, the Court of Appeals elaborated on Holsclaw as

follows:

Prior to [the d]efendant’s act, [the victim] was a

healthy, pregnant adult. After the attack, she was in a

vegetative state, unconscious and in need of hydration

and nutrition supplied artificially. We do not find

sufficient evidence to submit the intervening cause

instruction to the jury, because there is no evidence or

conflict in the evidence which could support the idea

that discontinuing artificial hydration and nutrition was

the sole cause of [the victim]’s death. The evidence is

clear that [the d]efendant’s attack was the proximate

cause, and any actions by physicians cannot supply a

defense of sole intervening cause.

State v. Rippy, 210 N.C. App. 760, 711 S.E.2d 531 (2011) (citing

Holsclaw, 42 N.C. App. at 699, 257 S.E.2d at 652–53).

In light of the foregoing authority, Petitioner’s unsupported

assertion that removal of life support by the victim’s wife

constitutes an intervening cause of the victim’s death which

establishes Petitioner’s actual innocence of the first degree

murder charge falls short. See Roberts v. Ballard, No. CIV.A.

1:13-23245, 2014 WL 4929403, at *3 (S.D.W. Va. Sept. 30, 2014)

(unpublished) (noting that “numerous courts have concluded that

removal of a victim from life support is not an intervening cause

14

of death sufficient to relieve one from criminal liability” (citing

Anderson v. Ignacio, No. 3:98CV655, 2011 WL 294388, at *4–5 (D.

Nev. Jan. 26, 2011) (unpublished), Ray v. Commonwealth of Ky., Civ.

No. 2005–SC–0241–MR, 2006 WL 2708537, at *1 (Ky. Sept. 21, 2006)

(unpublished), State v. Pelham, 176 N.J. 448, 824 A.2d 1082,

1090–91 (2003), Carrigg v. State, 696 N.E.2d 392, 396 (Ind. App.

1998), and State v. Yates, 64 Wash. App. 345, 824 P.2d 519, 523

(1992))).

B. Low IQ/Intellectual Disability

Petitioner next argues that the Court should excuse the

Petition’s untimeliness because, “at the time of [ P]etitioner’s

offenses came about [sic][,] that he was mentally delayed and

possessed an intellectual function [sic] and disability below 70

I.Q.” (Docket Entry 8 at 2; see also Docket Entry 1, ¶ 18; Docket

Entry 2 at 2.) More specifically, Petitioner asserts that the

school records attached to his MAR “reflect that [ P]etitioner’s

I.Q. equivalent [sic] to a pre-schooler” (Docket Entry 8 at 3

(referencing Docket Entry 6-5 at 69-132)), and “that he possessed

not only the I.Q. of a [sic] elamentary [sic] schooler but also the

understanding of an elamentary [sic] schoole [sic]” (id. at 15).

Further, “Petitioner takes objection to [R]espondent’s . . .

attempting to use [ P]etitioner’s subsequent G.E.D scores to equate

and to conclusorily infe[r ] that at [sic] time of [ P]etitioner’s

alleged crime was [sic] committed, and at the time of his plea that

15

[ P]etitioner maintains the same I.Q. as his G.E.D scores, and that

he possessed the same capacity to understand that he had a one (1)

year statute of limitation to bring his 2254 petition issues.”

(Id.)

The Court could construe those arguments as an attempt by

Petitioner to establish grounds for equitable tolling of the

limitations period, see Holland v. Florida, 560 U.S. 631, 649

(2010) (holding that equitable tolling requires proof that

“extraordinary circumstance . . . prevented timely filing”).

However, Petitioner’s reliance on his alleged low IQ and/or

intellectual disability to demonstrate entitlement to equitable

tolling misses the mark for three reasons.

First, the trial court found during the plea hearing that

Petitioner 1) could hear and understand the trial court (see Docket

Entry 6-2 at 2); 2) could read and write at a ninth grade level

(id.); 3) understood the nature of the charges, defenses to the

charges, and the consequences of pleading guilty (id.); 4) entered

his guilty plea of his own free will, fully understanding his

actions (id. at 3); and 5) had no questions about his plea or his

case (id.). Those factual findings carry a presumption of

correctness. See 28 U.S.C. § 2254(e). Petitioner’s reliance on

his school records (see Docket Entry 8 at 3 (referencing Docket

Entry 6-5 at 69-132)) does not overcome that presumption, as

Petitioner’s poor grades and test scores could have resulted from

16

factors such as truancy, tardiness, disciplinary issues, and lack

of motivation, rather than from a low IQ and/or intellectual

disability.6 Moreover, those records do not appear to reflect

Petitioner’s IQ. (See Docket Entry 6-5 at 69-132.)

Second, even if Petitioner could overcome that presumption of

correctness, the United States Court of Appeals for the Fourth

Circuit has made clear that “equitable tolling because of a

petitioner’s mental condition” applies “only in cases of profound

mental incapacity.” United States v. Sosa, 364 F.3d 507, 512 (4th

Cir. 2004). Notably, in so holding, the Fourth Circuit cited a

Ninth Circuit decision that limited “equitable tolling based on

mental condition” to “exceptional circumstances, such as

institutionalization or adjudged mental incompetence.” Id. (citing

Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir.

1998)). Petitioner has made no showing that his alleged low IQ

and/or intellectual disability resulted in institutionalization or

incompetence at any time, let alone during the limitations period.

See Allen v. Bell, 250 F. App’x 713, 716 (6th Cir. 2007) (denying

inmate who alleged low IQ equitable tolling because he failed to

6 Petitioner’s school records consistently reflect high numbers of absences

and tardies. (See Docket Entry 6-5 at 71 (53 absences and 99 tardies in academic

year 1993-94 (second grade - repeated)), 73 (21 absences and 107 tardies for

1994-95 (third grade)), 75 (40 absences and 60 tardies for 1995-96 (fourth

grade)), 80 (62 absences and 85 tardies for 1996-97 (fifth grade)), 86 (44

absences and 74 tardies for 1992-93 (second grade)), 89 (19 absences and 91

tardies in 1991-92 (first grade)), 97 (59 absences and 72 tardies in 1998-99

(sixth grade - repeated)), 99 (48 absences and 68 tardies in 1997-98 (sixth

grade)), 106 (62 absences and 98 tardies in 1999-2000 (eighth grade)), 108 (64

absences and 4 tardies in 2000-01 (ninth grade)).)

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“ma[ke] any factual showing of mental incapacity”); Diamond v.

Clarke, No. 7:18CV580, 2019 WL 4546918, at *3 (W.D. Va. Sept. 19,

2019) (unpublished) (same).

Third, Petitioner has failed to allege any facts showing how

his alleged low IQ and/or intellectual disability actually

prevented him from timely filing the instant Petition. See House

v. Clarke, No. 3:16CV238, 2017 WL 990580, at *4 (E.D. Va. Mar. 14,

2017) (unpublished) (finding equitable tolling inapplicable where

the petitioner did not show how his mental condition prevented him

from timely filing). Specifically, Petitioner has not explained in

any meaningful way why he could not, with due diligence, have made

all appropriate filings before his one-year, post-conviction

limitation period expired despite his issues. (See Docket Entry 1,

¶ 18; see also Docket Entries 2, 8.) For example, Petitioner has

failed to detail his efforts to obtain assistance before the

expiration of his one-year federal filing period. (See id.)

Petitioner thus has not met his burden of showing that an

“extraordinary circumstance” prevented him from making a timely

filing in spite of his exercise of proper diligence.

C. Ineffective Assistance of Counsel

Lastly, although, as discussed above, Petitioner’s legal

arguments conflate various different legal concepts, he appears to

maintain that his trial counsel provided ineffective assistance of

counsel, because counsel 1) improperly allowed the prosecution to

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use a co-defendant’s out-of-court statement as a factual basis for

Petitioner’s guilty plea (see Docket Entry 2 at 9-11; see also

Docket Entry 8 at 4, 6-7, 10, 14); 2) told Petitioner the state

would execute him if he did not plead guilty and showed Petitioner

photographs of death row inmates to scare him into pleading guilty

(see Docket Entry 1, {7 18; see also Docket Entry 2 at 6-10, 16-18;

Docket Entry 8 at 3, 6); 3) conspired with the prosecutor at the

time of the plea hearing to conceal the fact that the victim’s wife

had removed life support from the victim (see Docket Entry 1, { 18;

see also Docket Entry 2 at 3, 6-7, 18; Docket Entry 8 at 3, 5-6, 9,

10, 12, 13); and 4) did not develop mitigating evidence of

Petitioner’s low IQ and/or intellectual disability and took

advantage of Petitioner’s mental state at the plea hearing (see

Docket Entry 2 at 9, 11; see also Docket Entry 8 at 6). Petitioner

seemingly contends that his trial counsel’s ineffective assistance

amounts to both “structural error” (Docket Entry 2 at 11, 14; see

also Docket Entry 8 at 2, 4, 10) and a “fundamental miscarriage of

justice” (Docket Entry 2 at 20; see also Docket Entry 8 at 2, 5, 8,

11, 12, 13, 14, 16) that permits him to bypass the one-year statute

of limitations (Docket Entry 8 at 2 (citing Weaver v.

Massachusetts, —~—SiU.S. sy 137 S. Ct. 1899 (2017))).

Petitioner’s argument fails for three reasons.

First, Petitioner incorrectly views the structural error

doctrine as a means to sidestep the applicable statute of

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limitations. (See Docket Entry 2 at 11, 14; see also Docket Entry

8 at 2, 4, 10.) The United States Supreme Court explained the

import of the structural error doctrine in Weaver:

[S]ome errors should not be deemed harmless beyond a

reasonable doubt. These errors came to be known as

structural errors. The purpose of the structural error

doctrine is to ensure insistence on certain basic,

constitutional guarantees that should define the

framework of any criminal trial. Thus, the defining

feature of a structural error is that it affects the

framework within which the trial proceeds, rather than

being simply an error in the trial process itself. For

the same reason, a structural error defies analysis by

harmless error standards. . . . Despite its name, the

term “structural error” carries with it no talismanic

significance as a doctrinal matter. It means only that

the government is not entitled to deprive the defendant

of a new trial by showing that the error was harmless

beyond a reasonable doubt.

Weaver, ___ U.S. at ___-___, 137 S. Ct. at 1907-10 (internal

citations, quotation marks, and brackets omitted). Thus, a

structural error in the framework of a trial precludes the state

from arguing that the error qualifies as harmless, but does not

impact the separate and distinct issue of the timeliness of a

federal petition under Section 2254, see Lindsay v. United States,

No. CV 18-17581, 2019 WL 4169013, at *2 (D.N.J. Sept. 3, 2019)

(unpublished) (“Petitioner asserts in his motion that he should be

permitted to evade the time bar because he believes he is raising

claims for structural errors and structural error holds no

limitation. Petitioner provides no caselaw in support of such an

assertion, and th[e c]ourt is aware of none. Indeed, what little

caselaw exists suggests that structural errors are not immune to

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the statute of limitations.” (citing Dedona v. United States, No.

08-2046, 2009 WL 2778386, at *4-5 (D.N.J. Aug. 31, 2009)

(unpublished))).

Second, Petitioner mistakenly believes that his allegations of

ineffective assistance of trial counsel demonstrate a “fundamental

miscarriage of justice” sufficient to bypass the one-year

limitations period. (Docket Entry 2 at 20; see also Docket Entry

8 at 2, 5, 8, 11, 12, 13, 14, 16.) However, contrary to

Petitioner’s beliefs, the legal concept of “fundamental miscarriage

of justice” does not constitute a level of severity applicable to

any alleged constitutional error which, once reached, entitles a

petitioner to bypass the statute of limitations. Rather, the

fundamental “miscarriage of justice exception applies to [the]

severely confined category” of actual innocence claims, McQuiggin,

569 U.S. at 394-95, to ensure “‘that federal constitutional errors

do not result in the incarceration of innocent persons,’” id. at

400 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).

Because, as discussed supra, Petitioner’s actual innocence claim

fails as a matter of law, he cannot invoke the “fundamental

miscarriage of justice” exception to the statute of limitations.

Third, although, as a general matter, circumstances might

exist where ineffective assistance of trial counsel provides

grounds for equitable tolling, Petitioner has not shown how any of

the alleged errors by his trial counsel, all of which allegedly

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occurred at or before the time of his guilty plea, affected his

subsequent ability to timely file the instant Petition (see

generally Docket Entries 1, 2, 8). Equitable tolling thus does not

apply in this context. See generally Harris v. Hutchinson, 209

F.3d 325, 330 (4th Cir. 2000) (holding that error by trial counsel

even in interpreting statute of limitations did not present

extraordinary circumstances necessary to invoke equitable tolling);

Hinton v. Williams, No. CV 5:18-2617, 2020 WL 1027337, at *3

(D.S.C. Mar. 3, 2020) (unpublished) (rejecting equitable tolling

and noting that “[a]ny difficulties that [post-conviction] counsel

had in obtaining a complete copy of [the p]etitioner’s trial

counsel’s file did not prevent [post-conviction] counsel from

timely filing an extensive [post-conviction] application in state

court, nor did they prevent federal habeas counsel from timely

filing the instant petition”).

In sum, Petitioner cannot avoid the statute of limitations in

this case.

IV. Conclusion

The statute of limitations bars the instant Petition.

IT IS THEREFORE RECOMMENDED that Respondent’s Motion to

Dismiss (Docket Entry 5) be granted, that the Petition (Docket

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Entry 1) be dismissed, and that a judgment be entered dismissing

this action, without issuance of a certificate of appealability.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

August 5, 2020

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