The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL ADDIB NAZZAL, )
)
Petitioner, )
)
v. ) 1:21CV968
)
WARDEN JAMEL JAMES, )
)
Respondent. )
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Petitioner, a prisoner of the State of North Carolina,
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(“Petition”). (Doc. 1.) Respondent filed an Answer (Doc. 4), a
Motion for Summary Judgment (Doc. 5), and a Brief in Support of
the Motion for Summary Judgment (“Resp.’s Br.”) (Doc. 6). In
lieu of responding to the Motion for Summary Judgment,
Petitioner filed a Motion for Leave to Amend Petition Pursuant
to Rule 15(a)(2) and Motion for Stay and Abeyance (“Motion to
Amend/Stay”) (Doc. 7), and Respondent filed a Response (Doc. 8).
Both motions are now ripe for adjudication, and for the reasons
that follow, this court will grant Respondent’s Motion for
Summary Judgment and deny Petitioner’s Motion to Amend/Stay.
I. PROCEDURAL BACKGROUND
On February 22, 2018, Petitioner was convicted by a jury of
second-degree murder, felony death by motor vehicle, felony hit
and run causing death, driving while impaired (“DWI”), failure
to maintain lane control, driving while license revoked
(“DWLR”), DWLR for impaired revocation, displaying a revoked
license plate, and operating a vehicle without insurance in the
Superior Court of Orange County. (Petition (Doc. 1) at 1-
2; Resp.’s Br., Ex. 1 (Doc. 6–2) at 2-6, Ex. 29 (Doc. 6-30) at
12-13.)1 The trial court arrested judgment on the convictions
for felony death by motor vehicle and DWI (Resp.’s Br., Ex. 1
(Doc. 6-2) at 5-6, Ex. 29 (Doc. 6-30) at 69), consolidated the
remaining convictions, and sentenced Petitioner for second
degree-murder to a term of 175 to 222 months in prison (Petition
(Doc. 1) at 1; Resp.’s Br., Ex. 1 (Doc. 6-2) at 2-4, Ex. 29
(Doc. 6-30) at 69).
Petitioner filed a direct appeal, and the North Carolina
Court of Appeals found no prejudicial error in Petitioner’s
second degree-murder conviction and sentence, State v.
Nazzal, 270 N.C. App. 345, 353-58 (N.C. Ct. App. 2020), but
1 All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
ruled that the trial court erred in denying Petitioner’s motion
to dismiss the DWI and the felony death by motor vehicle
charges, because the State presented insufficient evidence that
Petitioner was “appreciably impaired” under N.C. Gen. Stat.
§ 20-4.01(48b) (2019) at the time of the collision, id. at 351-
53.2 Because the trial court had arrested judgment on the
Petitioner’s DWI and felony death by motor vehicle convictions,
the Court of Appeals reversed those convictions without
remanding for resentencing. Id. at 353. The North Carolina
Supreme Court thereafter denied both Petitioner’s and
Respondent’s petitions for discretionary review on September 23,
2020. State v. Nazzal, No. 158P20, 847 S.E.2d 418 (Mem) (N.C.
Sept. 23, 2020) (unpublished), and review denied, 375 N.C. 491,
847 S.E.2d 885 (Mem) (2020).
On March 2, 2018, one day after filing his notice of
appeal, Petitioner filed a Motion for Appropriate Relief (“MAR”)
in the trial court, moving to dismiss his convictions for
operating a motor vehicle without insurance, displaying a
revoked license plate, and DWLR (Petition (Doc. 1) at 3; Resp.’s
Br., Ex. 13 (Doc. 6-14) at 2-12; see also id. at 13-32 (Amended
MAR filed March 5, 2018, seeking same relief)) (collectively
2 DWI is a necessary element of the felony death by motor
vehicle offense. See N.C. Gen. Stat. § 20-141.4(a1)(2) (2019).
“First MAR”), as well as a MAR moving to dismiss his convictions
for second degree murder, felony death by motor vehicle, and DWI
(Petition (Doc. 1) at 3; Resp.’s Br., Ex. 14 (Doc. 6-15) at 2-
12; see also id. at 13-30 (Amended MAR filed March 5, 2018,
seeking dismissal of same convictions); id. at 31-61 (Second
Amended MAR filed May 15, 2018, seeking dismissal of same
convictions)) (collectively “Second MAR”).
On April 14, 2020, after the Court of Appeals had issued
its decision on direct appeal, the trial court denied the First
MAR with respect to Petitioner’s arguments directed at
dismissing his convictions for operating a motor vehicle without
insurance and displaying a revoked license plate (Petition (Doc.
1) at 3; Resp.’s Br., Ex. 15 (Doc. 6-16)), but granted the First
MAR concerning Petitioner’s conviction for DWLR as against the
weight of the evidence presented at trial (Petition (Doc. 1) at
3; Resp.’s Br., Ex. 17 (Doc. 6-18) at 4-7).3 On that same date,
the trial court denied Petitioner’s Second MAR, finding that the
Court of Appeals’ reversal of Petitioner’s felony death by motor
vehicle and DWI convictions mooted his arguments to dismiss
3 As the trial court had consolidated all of Petitioner’s
convictions and sentenced him for the Class B-2 felony of second
degree-murder, the reversal of his conviction for DWLR had no
impact on his sentence.
those convictions (Petition (Doc. 1) at 3; Resp.’s Br., Ex. 17
(Doc. 6-18) at 2-3), and denying Petitioner’s contentions
directed at dismissing his second degree-murder conviction
(Petition (Doc. 1) at 3; Resp.’s Br., Ex. 16 (Doc. 6-17)).
On May 6, 2020, Petitioner filed a notice of appeal with
the Court of Appeals seeking review of the trial court’s denial
of his arguments aimed at dismissing his second degree-murder
conviction raised in his Second MAR. Thereafter, on August 25,
2021, the Court of Appeals granted the State’s motion to
dismiss, finding Petitioner’s arguments procedurally barred, see
N.C. Gen. Stat. § 15A-1419(a)(2) & (3) (providing that MAR
should be denied where either “[t]he ground or issue underlying
the [MAR] was previously determined on the merits upon an appeal
from the judgment” or “[u]pon a previous appeal the defendant
was in a position to adequately raise the ground or issue
underlying the present [MAR] but did not do so”). (Petition
(Doc. 1) at 5; Resp.’s Br., Ex. 30 (Doc. 6–31).) Petitioner,
proceeding through post-conviction counsel, filed the instant
Petition with this court on December 21, 2021. (Petition (Doc.
1) at 1.)
II. PETITIONER’S CLAIMS
Petitioner contends: (1) “[t]he affidavit supporting
application for warrant to search cell phones seized from
Petitioner was conclusory and overly broad in violation of the
4th Amendment to the United States Constitution” (id. at 5); (2)
“[t]he police inexcusably delayed seeking the search warrant for
thirteen months after they seized cell phones in violation of
the Fourth Amendment to the United States Constitution” (id. at
7); (3) “[t]he prosecution used two witnesses it found only
through the unconstitutional search of the cellular phones and
Petitioner was thereby substantially prejudiced” (id. at 8); and
(4) “[t]he Court of Appeals used an incorrect prejudice standard
by not requiring the State to show the admission of
unconstitutionally obtained evidence was harmless beyond a
reasonable doubt” (id. at 10).
III. FACTUAL BACKGROUND
The North Carolina Court of Appeals summarized the facts
from Petitioner’s case as follows:
Just before 2:00 a.m. on 17 December 2016, [the
decedent] Mr. [Francisco] Nolasco’s pickup truck was
involved in a single-vehicle accident requiring
assistance on I-40 West in Orange County. Road
conditions that night were wet and icy. Mr. Nolasco
called his friend and tow truck driver Omar Castillo
(“Mr. Castillo”) for assistance, and he arrived
shortly thereafter. Upon realizing that Mr. Nolasco’s
pickup was precariously positioned partially in the
right lane of traffic, Mr. Castillo immediately set
about removing the vehicle from the road.
Mr. Castillo testified that he then positioned his tow
truck in front of Mr. Nolasco’s pickup, partially in
the right lane of traffic. For unknown reasons, the
tow truck’s cable system failed to lift the pickup
onto its rollback. At this time, Mr. Nolasco was
standing on the shoulder of the road, with the tow
truck between himself and the westbound lanes of
traffic. Mr. Castillo began walking around the front
of the tow truck to address the cable system
malfunction. As he was in front of the tow truck, he
heard screeching tires, dove over the guardrail, and
observed a black Honda crash into the guardrail and
hurdle forward, hitting the pickup and tow truck
before proceeding down the shoulder between the tow
truck and guardrail, hitting Mr. Nolasco and knocking
him into the road.
Mr. Castillo testified that he went into the road to
assist Mr. Nolasco and found him unconscious. He tried
to signal oncoming cars but they did not see him, and
he had to leave Mr. Nolasco in the road to preserve
his own safety. Then another car traveling about forty
seconds behind [Petitioner] ran over Mr. Nolasco.
Based on his observation of the collision’s intensity
and Mr. Nolasco’s unconscious body in the roadway, Mr.
Castillo opined that [Petitioner]’s black Honda killed
[Mr. Nolasco] before the second car arrived. He
testified that the second car stopped immediately
after hitting Mr. Nolasco, but [Petitioner] only
stopped briefly and then continued.
Austin Phillips (“Mr. Phillips”), the driver of the
second car, testified that he saw the tow truck’s
flashing lights and switched from the right to left
lane of westbound traffic in order to “avoid any
contact with the person that may be getting out of the
tow truck[.]” After realizing he had run over a human
body, Mr. Phillips immediately pulled over and called
911 for assistance.
Trooper Kyle Underwood testified that he, Trooper
Matthew Morrison, and one other highway patrolman
arrived at the scene at 1:54 a.m. and began taking
measurements, recording witness statements, and
investigating the wreckage and other evidence at the
scene. Trooper Underwood noted damage to the
shoulder’s guardrail at a position prior to the tow
truck, damage to Mr. Nolasco’s pickup, and a missing
passenger side mirror on the tow truck. He discovered
the front bumper of a black Honda 99 feet away.
After searching the serial number on the bumper, the
troopers discovered that it belonged to a 2010 Honda
Accord registered to [Petitioner]’s name at a
Greensboro address. They also determined that
[Petitioner]’s tags and registration were currently
revoked due to a failure to carry insurance and his
driver’s license was currently suspended for a
previous DWI conviction. The troopers then contacted
the Guilford County Sheriff’s Office for assistance
locating defendant.
Sergeant James Meacham and Master Corporal Todd Riddle
of the Guilford County Sheriff’s Office arrived at
[Petitioner]’s Greensboro address just after 4:00 a.m.
Thirty minutes later, [Petitioner] arrived in a black
Honda Accord with significant front-end damage. This
damage included deployed airbags, no front bumper, a
shattered windshield, damage to the hood, missing
headlights, and general body damage on the front of
the car. Sergeant Meacham called Trooper Morrison and
informed him that they had detained [Petitioner] at
his residence. In his conversation with the deputies,
[Petitioner] admitted that he had been involved in a
collision but said “it wasn't a very bad one[,]” so he
drove away. Sergeant Meacham testified that
“[Petitioner’s] actions indicated just a very
carefreeness [sic] attitude about what had
transpired[.]” The two deputies were relieved by
deputies on the day shift at around 6:00 a.m.
Troopers Underwood and Morrison obtained an arrest
warrant for felony hit and run and arrived at
[Petitioner]’s residence in Greensboro at around 7:00
a.m. Trooper Morrison observed that [Petitioner]’s car
was covered in droplets of ice and appeared to be much
cleaner than his own patrol vehicle covered in road
salt, despite both cars making a similar drive from
Orange County to Greensboro in identical weather
conditions. [Petitioner] was arrested and transported
by the troopers to the Orange County Sheriff’s Office
for booking. Two cell phones found on [Petitioner]’s
person at the time of his arrest were seized.
Based upon his observations of [Petitioner] while they
were en route to the sheriff’s office, Trooper
Underwood testified that he formed an opinion that
[Petitioner] was appreciably impaired to the extent
that it was unsafe for him to drive an automobile at
the time of the collision five hours earlier. In
addition to the mere nature of the collision site and
his flight therefrom, Trooper Underwood based this
opinion on the following evidence. When he observed
[Petitioner] at approximately 7:00 a.m., [Petitioner]
had red, glassy eyes, was unsteady on his feet, and at
times was “speaking out of his head” and “rambling,
going on with half sentences, speaking [in a way] that
just did not make sense.” [Petitioner] also made
contradictory statements regarding his location at the
time of the collision, seeming confused about where it
occurred. Additionally, [Petitioner] fell asleep on
the ride to the sheriff’s office. Trooper Underwood
found this very strange because [Petitioner] had just
been told the jarring news that he had killed a man.
He stopped his patrol vehicle and had Trooper Morrison
shake [Petitioner] awake, upon which [Petitioner]
stated that he was fine. No other testifying officer
formed the opinion that [Petitioner] was impaired at
the time of the collision. Nor did any investigating
officer ever subject [Petitioner] to any of the
numerous field tests for impairment utilized by law
enforcement.
A later search of [Petitioner]’s phones revealed text
messages tending to suggest he had been attempting to
buy crack cocaine earlier in the day before the
collision. The search also led the State to two
testifying witnesses. Tiffany Haynes (“Ms. Haynes”)
testified that [Petitioner] called her for a “date”
the day of the collision, stating that he would drive
from Cary to her motel room in Greensboro that night.
Because they had done the same thing on a previous
“date” three weeks prior, Ms. Haynes believed that
[Petitioner] intended to smoke crack with her, engage
her in sexual intercourse, and then smoke marijuana.
Robert Tate testified that [Petitioner] had bought an
ounce of high-grade marijuana from him the day before
the collision.
Nazzal, 270 N.C. App. at 347-49.
IV. DISCUSSION
A. Motion for Summary Judgment
Respondent raises four arguments in support of the Motion
for Summary Judgment: 1) “28 U.S.C. § 2254 does not grant this
Court jurisdiction to consider Petitioner’s present claims, as
the convictions stemming from the alleged errors have been
overturned on other grounds[ and t]herefore, he cannot be ‘in
custody in violation of the Constitution’ as required to satisfy
section 2245” (Resp.’s Br. (Doc. 6) at 10); 2) “this court
should not consider Petitioner’s claims [under Stone v. Powell,
428 U.S. 465, 494 (1976)] because he had a full and fair
opportunity to litigate them in state court” (id. at 15
(capitalization and bold font omitted)); 3) “the [Court of
Appeals’] decision was not an unreasonable application of
clearly established federal law as determined by the [United
States] Supreme Court” (id. at 17 (capitalization and bold font
omitted)); and 4) “Petitioner’s Fourth Amendment rights were not
violated” (id. at 25 (capitalization and bold font omitted)).
For the reasons more fully explained below, the court finds that
the rule in Stone bars the court’s review of all four Grounds
for Relief in the Petition.
As an initial matter, as discussed above, in lieu of
responding to the merits of the arguments Respondent raised in
the Motion for Summary Judgment, Petitioner filed his Motion to
Amend/Stay. As this court has previously recognized:
Under the local rules, an uncontested motion is
“ordinarily . . . granted without further
notice.” L.R. 7.3(k). However, . . . [a] district
court may not grant a motion for summary judgment
merely because it is unopposed. Custer v. Pan Am. Life
Ins. Co., 12 F.3d 410, 416 (4th Cir.1993). It must
still consider the motion on the merits . . . .
Gardendance, Inc. v. Woodstock Copperworks, Ltd., 230 F.R.D.
438, 448 (M.D.N.C. 2005). Thus, although Petitioner’s
“failure . . . to respond to [Respondent’s] summary judgment
motion may leave uncontroverted those facts established by the
motion, [Respondent] must still show that the uncontroverted
facts entitle the party to ‘a judgment as a matter of law,’” and
the court will “review [Respondent’s] motion, even [as]
unopposed, and determine from what it has before it whether the
[Respondent] is entitled to summary judgment as a matter of
law.” Custer, 12 F.3d at 416.
Grounds One, Two, and Three of the Petition all assert
violations of the Fourth Amendment to the United States
Constitution arising out of an allegedly unconstitutional search
of Petitioner’s cellphones. (Petition (Doc. 1) at 5, 7, 8.)
Ground Four faults the Court of Appeals for applying the wrong
harmlessness standard when rejecting Petitioner’s argument under
the Fourth Amendment that the trial court erred by denying his
motion to suppress evidence obtained by the police through an
unconstitutional search of his cellphones. (Id. at 10.)
Accordingly, all four Grounds for Relief are rooted in the
alleged unconstitutionality of the search of Petitioner’s
cellphones under the Fourth Amendment.
Under the rule in Stone, “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment
claim, a state prisoner may not be granted federal habeas corpus
relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.”
Stone, 428 U.S. at 494. As the United States Court of Appeals
for the Fourth Circuit has long recognized, the court must
“first inquire as to whether or not [ P]etitioner was afforded
an [o]pportunity to raise his Fourth Amendment claims under the
then existing state practice.” Doleman v. Muncy, 579 F.2d 1258,
1265 (4th Cir. 1978). After the “court has made the
‘opportunity’ inquiry, it need not inquire further into the
merits of [ P]etitioner’s case . . . unless [he] alleges
something to indicate that his opportunity for a full and fair
litigation of his Fourth Amendment claim or claims was in some
way impaired.” Id.
The record before the court conclusively establishes that
Petitioner had a full and fair opportunity to litigate his
Fourth Amendment claims in the state courts, as well-explained
by Respondent:
In a pre-trial motion to suppress, Petitioner sought
to “suppress all evidence obtained in this case
pursuant to the search warrant issued” for his cell
phones. [(Resp.’s Br., Ex. 32 (Doc. 6-33) at 2.)] The
trial court held a pre-trial hearing on this issue,
where the State presented evidence and Petitioner
declined to present evidence. [(Id., Ex. 19 (Doc. 6-
20) at 11–28.)] Both parties argued the law supporting
their position. [(Id. at 28-55.)] The trial court
considered all available evidence and law, and denied
Petitioner’s motion. [(Id., Ex. 33 (Doc. 6-34).)]
Petitioner sought review on appeal. There too, his
Fourth Amendment claim was unanimously denied by the
[Court of Appeals]. [(Id., Ex. 6 (Doc. 6-7).)]
Petitioner finally sought review by the [North
Carolina Supreme Court], but his petition for
discretionary review was denied by that court. [(Id.,
Ex. 11 (Doc. 6-12).)]
(Id. at 16.) Moreover, as Petitioner opted not to respond to
Respondent’s Motion for Summary Judgment, he has not presented
the court with any argument that his opportunity to litigate his
Fourth Amendment claims in the state courts was impaired in any
way. (See Petition (Doc. 1).)
In sum, the rule in Stone bars this court’s review of all
four of the Grounds for Relief in the Petition and thus the
Court will deny the Petition.
B. Motion to Amend/Stay
Petitioner moves the court under Rule 15(a)(2) of the
Federal Rules of Civil Procedure “for leave to amend his
Petition to include a claim for ineffective assistance of
appellate counsel under the Sixth Amendment to the United States
Constitution; and if this Court grants such leave, for a stay
and abeyance of his pending 28 U.S.C § 2254 habeas petition
while he exhausts his state claims for ineffective assistance of
appellate counsel.” (Mot. to Amend/Stay (Doc. 7) at 1.)
Petitioner describes his proposed new ineffective assistance
claim as follows:
Under North Carolina law, second degree murder can
result from violations of the motor vehicle code if
said offenses proximately cause a person’s death and
if said motor vehicle violations are committed with
malice. The second degree murder charge in
Petitioner’s case was premised on two alternate
theories – that is, two predicate offenses were
submitted to the jury. The first predicate offense was
[DWI]. The second predicate offense was Failure to
Maintain Lane Control (“FTMLC”).
At trial, Petitioner’s trial counsel objected to both
offenses being offered as a predicate offense to
support second degree murder. His objection was
denied. Petitioner’s trial counsel also requested the
trial court to issue a special verdict sheet to the
jury that would allow the jury to indicate whether
they unanimously agreed that Petitioner had committed
DWI with malice or FTMLC with malice (or both). The
trial court denied trial counsel’s request for a
special verdict sheet.
Petitioner was convicted of second degree murder as
well as DWI and FTMLC. Petitioner appealed his
convictions. On direct appeal, the [Court of Appeals]
held that “the trial court erred in denying
defendant’s motion to dismiss the DWI . . . due to
insufficient evidence of impairment.” Based on the
[Court of Appeals’] ruling, DWI should not have been
submitted to the jury as a predicate offense for
second degree murder; and without a special verdict
sheet, there was and is no way to determine if the
jury unanimously agreed that Petitioner committed the
predicate offense of FTMLC with malice. This error
entitles Petitioner to a new trial but Petitioner’s
Appellate Counsel failed to raise this issue on
appeal.
Clearly established North Carolina precedent shows
that Petitioner was entitled to a new trial based on
the lack of a special verdict sheet combined with the
dismissal of the DWI that was used as a predicate
offense for second degree murder. In State v.
Pakulski, 356 S.E.2d 319 (1987), [t]he Supreme Court
of North Carolina held that “Where the trial judge has
submitted the case to the jury on alternative
theories, one of which is determined to be erroneous
and the other properly submitted, and we cannot
discern from the record the theory upon which the jury
relied, this Court will not assume that the jury based
its verdict on the theory for which it received a
proper instruction. Instead, we resolve the ambiguity
in favor of the defendant.” Pakulski, 356 N.C. at 326.
(Mot. to Amend/Stay (Doc. 7) at 6-8 (internal parenthetical
citations and bracketed material omitted).)4
Regarding grounds to stay the Petition, Petitioner explains
that “asserting the Sixth Amendment claim in this Petition at
this time prior to exhausting his state remedies would result in
the Petition being a ‘mixed petition,’” and that “[i]f
Petitioner dismisses his Petition while he litigates his Sixth
Amendment claim in state court, he will be unable to refile his
petition (if his Sixth Amendment claim fails) because of the
4 Petitioner does not explain how his appellate counsel
could have raised a claim on direct appeal that did not arise
until the Court of Appeals reversed Petitioner’s conviction for
DWI. (See Mot. to Amend/Stay (Doc. 7).)
statute of limitations.” (Mot. to Amend/Stay (Doc. 7) at 3.)
According to Petitioner, the court should stay, rather than
dismiss the Petition because, under Rhines v. Weber, 544 U.S.
269 (2005), he “‘had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no
indication that [he] engaged in intentionally dilatory
litigation tactics.’” (Mot. to Amend/Stay (Doc. 7) at 4 (quoting
Rhines, 544 U.S. at 278).) Petitioner claims he can satisfy all
three requirements under Rhines. (Id.)
“[28 U.S.C.] § 2242 specifically provides that habeas
applications ‘may be amended . . . as provided in the rules of
procedure applicable to civil actions.’” Mayle v. Felix, 545
U.S. 644, 654–55 (2005). Under those rules, “[a] party may amend
its pleading once as a matter of course within: (A) 21 days
after serving it, or (B) if the pleading is one to which a
responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P.
15(a)(1). “In all other cases, a party may amend its pleading
only with the opposing party’s written consent or the court’s
leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). In this case, Petitioner
filed the Motion to Amend/Stay more than 21 days after
Respondent filed its Answer and Motion for Summary Judgment and
thus must seek leave of court to amend the Petition under Rule
15(a)(2).
Under this standard, the United States Supreme Court has
held that reasons to deny leave to amend include “undue delay,
bad faith or dilatory motive on the part of the movant, . . .
undue prejudice to the opposing party . . ., [and] futility of
amendment,” Foman v. Davis, 371 U.S. 178, 182 (1962) (emphasis
added). “[If] the statute of limitations has expired on [a]
claim . . ., leave to amend would be futile unless the amendment
relates back to the filing of the original [pleading].” Keller
v. Prince George’s Cnty., 923 F.2d 30, 33 (4th Cir. 1991).
Petitioner has conceded that the one-year statute of
limitations under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2244(d)(1), expired on December 22,
2021, i.e., one year after his convictions finalized on December
22, 2020, the last day (90th day) he could have filed a
certiorari petition in the United States Supreme Court following
the North Carolina Supreme Court’s denial of his petition for
discretionary review on September 23, 2020. (Petition (Doc. 1)
at 13.) Accordingly, Petitioner’s proposed new claim qualifies
as timely under Section 2254(d)(1) only if it “relates back” to
his Petition submitted on December 21, 2021, one day before the
expiration of the statute of limitations. Under the
circumstances presented here, the relation-back doctrine would
only save “a claim . . . that arose out of the conduct,
transaction, or occurrence set out — or attempted to be set
out — in the original pleading,” Fed. R. Civ. P. 15(c)(1)(B).
In the context of a habeas petition, “conduct, transaction, or
occurrence” does not mean a petitioner’s entire trial or
sentencing. Mayle, 545 U.S. at 664. Instead, only newly proposed
claims linked as to “‘time and type’” with timely claims relate
back. United States v. Pittman, 209 F.3d 314, 318 (4th Cir.
2000) (quoting United States v. Craycraft, 167 F.3d 451, 457
(8th Cir. 1999)).
Here, Petitioner’s proposed new ineffective assistance of
appellate counsel claim differs in “time and type” from Grounds
One through Four. As discussed above, Grounds One and Two
challenge various pre-trial actions by State actors, i.e., the
State highway patrolman’s submission in January 2018 of an
allegedly conclusory and overbroad affidavit in support of the
search warrant for Petitioner’s cellphones (Petition (Doc. 1) at
5), and purportedly inexcusable delay from December 2016 to
January 2018 by the State highway patrol in seeking the search
warrant (id. at 7), and Ground Three contests the use at trial
in February 2018 by the State of two witnesses discovered
through the allegedly unconstitutional search of Petitioner’s
cellphones (id. at 8). Ground Four focuses on the Court of
Appeals, at the time it issued its decision in March 2020,
applying an improper harmlessness standard to Petitioner’s
Fourth Amendment argument regarding the unlawful search of his
cellphones. (Id. at 10.) In contrast, Petitioner’s proposed new
claim involves the actions of his appellate counsel during the
pendency of Petitioner’s direct appeal (March 2018 to March
2020) in failing to raise a claim that the trial court erred by
denying Petitioner’s request for a special verdict form for the
second degree-murder charge. As those facts make clear, Grounds
One through Four differ in both time and type from Petitioner’s
proposed new ineffective assistance claim, and that new claim
thus does not “relate back” to claims in the Petition under Rule
15(c)(2). As a result, Section 2244(d)(1) bars Petitioner’s
proposed new claim and renders futile his attempt to add the
claim. Further, because the court will deny Petitioner’s motion
to amend the Petition, no basis exists for the court to stay the
Petition to enable him to exhaust his appellate ineffectiveness
claim in the state courts.
Vv. CONCLUSION
IT IS THEREFORE ORDERED that Respondent’s Motion for
Summary Judgment (Doc. 5) is GRANTED, that Petitioner’s Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (Doc. 1) is DENIED, that Petitioner’s Motion for
Leave to Amend Petition Pursuant to Rule 15(a)(2) and Motion to
Stay and Abeyance (Doc. 7) is DENIED, and that this action is
DISMISSED with prejudice.
A Judgment dismissing this action will be entered
contemporaneously with this Order. 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 not issued.
This the 20th day of September, 2022.
fa inant Gala □□□
United States District Ju
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