Craig v. Hooks

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:18-cv-00147-MR

MAURICE ALAN CRAIG, )

)

Petitioner, )

)

vs. ) O R D E R

)

ERIK HOOKS, )

)

Respondent. )

___________________________ )

THIS MATTER is before the Court on the Respondent’s Motion to

Dismiss Habeas Petition [Doc. 12].

I. BACKGROUND

The Petitioner is a prisoner of the State of North Carolina. On April 4,

1994, the Petitioner pled guilty to one count of second-degree murder and

one count of assault with a deadly weapon. [Doc. 2 at 1]. On April 6, 1994,

he was sentenced to a term of life imprisonment for the murder conviction

and a concurrent sentence of ten years’ imprisonment for the assault

conviction. [Id.]. The Petitioner did not file a direct appeal. [Id. at 2].

On September 6, 2001, the Petitioner filed a § 2254 petition in this

Court challenging his 1994 state convictions. [Civil Case No. 1:01-cv-210-

GCM, Doc. 1]. In that petition, the Petitioner contended that North Carolina

sentencing practices had adversely affected his sentence and that his due

process and equal protection rights had been violated. [Id., Doc. 1 at 4-5].

The Court dismissed that petition without prejudice because the Petitioner

had failed to exhaust his claims in state court. [Id., Doc. 2 at 2].

The Petitioner did not appeal from the Court’s 2001 dismissal, but the

Petitioner did file a motion to amend his earlier petition in this Court on

November 5, 2001. [Id., Doc. 3]. The Petitioner also filed a motion for

authorization to file a successive application for habeas relief in the United

States Court of Appeals for the Fourth Circuit, which was denied on March

8, 2002. [Id., Doc. 4]. On November 15, 2002, this Court denied the

Petitioner’s motion to amend his earlier habeas petition, which the Court

construed as a motion for reconsideration. [Id., Doc. 5 at 2-3]. The Court

noted that the Petitioner had failed to demonstrate the timeliness of his

petition, despite having two opportunities to do so. [Id., Doc. 5 at 2].

In 2011, the Petitioner filed a motion for appropriate relief (“MAR”) in

Buncombe County Superior Court. Craig v. Jackson, No. 1:12-cv-284-RJC,

2013 WL 5536485, at *1 (W.D.N.C. Oct. 7, 2013). In that MAR, the Petitioner

argued that changes to the North Carolina Structured Sentencing Act

(“SSA”) retroactively applied to cases, such as his, where the defendant was

sentenced under the North Carolina Fair Sentencing Act (“FSA”). Id. The

court denied that MAR on October 14, 2011. Id.

On December 19, 2011, the Petitioner filed a petition for writ of habeas

corpus under North Carolina law, again contending that changes in North

Carolina’s sentencing laws entitled him to be resentenced. Id. The

Buncombe County Superior Court denied that writ on January 31, 2012, and

the Petitioner subsequently filed a petition for writ of certiorari in the North

Carolina Court of Appeals. Id. The court denied that petition for writ of

certiorari on March 14, 2012. Id.

In September 2012, the Petitioner filed an application for § 2254 relief

in the Middle District of North Carolina that was promptly transferred to this

Court. Id. In that petition, the Petitioner renewed his argument that changes

made to North Carolina’s SSA should be applied retroactively.1 Id.

Additionally, the Petitioner argued that it was unconstitutional—on due

process and equal protection grounds––for one sentenced under the FSA to

1 The Petitioner’s 2012 application for § 2254 relief was not “second or successive,” under

28 U.S.C. § 2244(b), to the Petitioner’s 2001 application for § 2254 relief because the

2001 application was dismissed for failure to exhaust claims in state court. See Slack v.

McDaniel, 529 U.S. 473, 485-86 (2000) (“A habeas petition filed in the district court after

an initial habeas petition was unadjudicated on the merits and dismissed for failure to

exhaust state remedies is not a second or successive petition.”). Therefore, § 2244(b)’s

gatekeeping provision did not apply to the 2012 petition, and the Court had jurisdiction to

review the merits of the Petitioner’s claims. See id. at 485-86.

serve a harsher sentence than one sentenced under the SSA, as initially

enacted, and as amended by the North Carolina General Assembly. Id.

On October 7, 2013, the Court dismissed the petition finding: (1) that

the Petitioner’s argument for the retroactivity of North Carolina’s SSA was a

state-law claim not cognizable on federal habeas review; (2) that the

Petitioner’s equal protection argument failed because the Petitioner failed to

demonstrate that he was a member of a suspect class; (3) that the

Petitioner’s due process argument failed because the Petitioner presented

no evidence that he did not knowingly and voluntarily plead guilty or that he

was unaware of his potential punishment; and (4) that the Petitioner’s

application for § 2254 relief was untimely. Id. at *2; id. at *2 n.1. The Court

declined to issue a certificate of appealability finding that the Petitioner had

not made a substantial showing of a denial of a constitutional right. Id. at *3

(citing 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38

(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

On August 10, 2017, the Petitioner filed another MAR in Buncombe

County Superior Court. [Doc. 2 at 16]. The court denied that MAR on

September 15, 2017. [Id. at 31-32]. On October 16, 2017, the Petitioner

filed a petition for writ of certiorari in the North Carolina Court of Appeals,

seeking review of the denial of the 2017 MAR. [Id. at 33]. That petition was

denied on October 19, 2017. [Id. at 38]. On November 17, 2017, the

Petitioner filed a petition for writ of certiorari with the North Carolina Supreme

Court. [Id. at 39]. That petition was denied on March 5, 2018.2 [Id. at 45];

see also State v. Craig, 809 S.E.2d 601 (N.C. 2018) (mem.).

On May 23, 2018, the Petitioner filed the instant application for § 2254

relief. [Doc. 2]. As his grounds for relief, the Petitioner argues that his plea

agreement was breached when the North Carolina legislature changed its

criteria for parole eligibility in 2008, and that this change to state law

constituted an illegal ex post facto law and a violation of the Petitioner’s

Eighth and Fourteenth Amendment rights.3 [Id. at 5, 13-14].

On September 21, 2020, the Court issued an Order explaining that the

instant Petition appeared to be untimely under § 2244(d)(1)(A) and

instructing the Petitioner to show cause why the instant Petition should not

be dismissed as untimely. [Doc. 5 at 4].

2 In the order denying the Petitioner’s MAR, the state court noted that the Petitioner had

previously filed six MARs asserting identical arguments, and that these MARs were all

denied. [Doc. 2 at 31]. The Petitioner, however, references only the 2017 MAR in the

instant Petition.

3 Even though the order denying the Petitioner’s MAR refers to the basis for the

Petitioner’s motion as being the same as the Petitioner’s past MARs, the Court will give

the Petitioner the benefit of the doubt that the 2017 MAR included an entirely new basis,

that being this ex post facto argument.

On October 13, 2020, the Petitioner responded to the Order arguing

that the instant Petition is timely because the Petitioner was neither given

the letters denying yearly parole review nor given access to a computer while

he was at Brown Creek Correctional Institution from 2007 until 2017. [Doc.

7 at 5-7]. The Petitioner contends that he did not receive the letters denying

yearly parole review until he was transferred to Tabor Correctional Institution

(“TCI”) in 2017. [Id. at 6]. According to the Petitioner, he “was not aware

that he was only being brought up every 36 months instead of every 12

months” until he was transferred to TCI and began receiving letters from the

North Carolina Parole Commission. [Id.].

The Petitioner contends that his 2017 receipt of the letters constitutes

“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” was

removed under 28 U.S.C. § 2244(d)(1)(B) and “the date on which the factual

predicate of the claim or claims presented could have been discovered

through the exercise of due diligence” under § 2244(d)(1)(D). [Id. at 7].

On November 23, 2020, the Court issued an Order directing the

Respondent to respond to the instant Petition.4 [Doc. 8]. On April 12, 2021,

4 The Respondent failed to receive ECF notice of the Court’s November 2020 Order.

[Doc. 9 at 1-2]. Thus, the Court issued the February 2021 Order giving the Respondent

sixty (60) days to answer or otherwise respond to the instant Petition. [Id. at 2].

the Respondent filed a motion to dismiss. [Doc. 12]. As support for that

Motion, the Respondent argued: (1) that the instant Petition was successive

without authorization from the Fourth Circuit, and (2) that the instant Petition

was untimely. [Doc. 13].

On June 1, 2021, the Petitioner responded to the Respondent’s

Motion. [Doc. 16]. In his Response, the Petitioner reiterated the timeliness

argument he made in response to the Court’s earlier Order. [Id. at 5-7]. The

Petitioner, however, provided no argument for why the instant Petition should

not be dismissed as successive without authorization from the Fourth Circuit.

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

expressly limits a petitioner’s ability to attack the same criminal judgment in

multiple collateral proceedings. See 28 U.S.C. § 2244(b)(3). Under 28

U.S.C. § 2244(b)(3)(A), “[b]efore a second or successive application . . . is

filed in the district court, the applicant shall move in the appropriate court of

appeals for an order authorizing the district court to consider the application.”

Id. § 2244(b)(3)(A). Failure to obtain authorization from the appropriate court

of appeals deprives the district court of jurisdiction to consider the petitioner’s

second or successive petition. Burton v. Stewart, 549 U.S. 147, 153 (2007).

Section 2244(b)’s gatekeeping provision does not, however, apply to

all habeas filings made after an initial habeas petition. Banister v. Davis, 140

S. Ct. 1698, 1705 (2020). And, if “a habeas petition is not second or

successive, then authorization to file is unnecessary and the court of appeals

will generally return the petition to the district court.” In re Gray, 850 F.3d

139, 140 (4th Cir. 2017) (citations omitted). Thus, a district court must

determine whether a new filing constitutes a “second or successive” habeas

petition in order to decide whether § 2244(b)’s gatekeeping provision applies,

and authorization from the appropriate court of appeals is required.

Magwood v. Patterson, 561 U.S. 320, 330-31 (2010).

“The phrase second or successive application . . . is a term of art, which

is not self-defining.” Banister, 140 S. Ct. at 1705 (internal quotation marks

and citations omitted). The phrase is not defined in AEDPA itself, but rather

“takes its full meaning from [Supreme Court] case law.” Panetti v.

Quarterman, 551 U.S. 930, 943 (2007) (citations omitted). Magwood is the

guiding Supreme Court case interpreting the phrase. Gray, 850 F.3d at 141.

In Magwood, the Supreme Court held that the prisoner’s second § 2254

petition was not “second or successive” under § 2244(b) because it was the

first petition addressing an intervening judgment issued between the

prisoner’s first and second § 2254 petitions. Magwood, 561 U.S. at 342.

The Magwood rule, however, does not apply where a habeas petitioner

challenges a parole denial in the absence of an intervening state-court

judgment. See In re Wright, 826 F.3d 774, 783 (4th Cir. 2016) (citing

Magwood, 561 U.S. at 338 n.12). The Fourth Circuit relies “on pre-AEDPA

abuse-of-the writ principles” to resolve § 2254 petitions challenging the

execution of a sentence. Id. Applying these principles, the Fourth Circuit

has determined that an application is “second or successive” under § 2244(b)

when “it raises claims that could have been raised in prior petitions.” Id.

(citing 28 U.S.C. § 2244(b)(2)).

As noted above, the Petitioner filed a § 2254 petition in 2012. Craig,

2013 WL 5536485, at *1-3. The Court dismissed that petition on the merits

in October 2013. Id. at *2. In the instant Petition, the Petitioner contends

that a 2008 amendment to state law constituted an unconstitutional ex post

facto law and breach of his 1994 plea agreement. [Doc. 2]. Because this

claim was available prior to the Petitioner’s 2012 application for § 2254 relief,

the instant Petition is “second or successive” under § 2244(b)(3). See

Wright, 826 F.3d at 784-85.

The Petitioner could have raised his ex post facto claim in 2012.

Notably, another North Carolina prisoner made the Petitioner’s same

argument in a 2010 civil rights lawsuit. See Hunt v. Rand, No. 5:10–CT–

3139–FL, 2011 WL 3664340, at *1 (E.D.N.C. Aug. 18, 2011). In Hunt, the

Plaintiff sought an injunction requiring an immediate parole hearing on the

basis that N.C. Gen. Stat. § 15A–1371(b)(4), as amended in 2008 to provide

for parole review every three years rather than every year, violated the Ex

Post Facto Clause of the United States Constitution. Id. at *1-3. This is the

same basis for relief alleged in the instant Petition, but absent from the

Petitioner’s 2012 application for § 2254 relief. Thus, the Petitioner could

have brought his ex post facto claim in 2012, but failed to do so. See Wright,

826 F.3d at 784-85; cf. Panetti, 551 U.S. at 947 (creating an “exceptio[n]” to

§ 2244(b) for a second application raising a claim that would have been

unripe had the petitioner presented it in his first application).

In sum, the instant Petition is an effort to re-contest the execution of

the Petitioner’s sentence based on grounds that were available prior to his

2012 application for § 2254 relief. And, because no judgment has been

entered since the original 1994 conviction, there is no intervening judgment

that could create a Magwood reset of § 2244(b)’s “second or successive bar.”

See Gray, 850 F.3d at 143 (“The Magwood Court made clear that it is the

newness of the intervening judgment as a whole that resets the habeas

counter to zero.”). Therefore, the instant Petition is “second or successive,”

and the Petitioner was required to apply for authorization from the Fourth

Circuit. 28 U.S.C. § 2244(b)(3)(A).

Because the Petitioner has not received the Fourth Circuit’s

authorization to file a “second or successive” habeas petition challenging the

execution of his sentence, the Court lacks jurisdiction to consider the merits

of the instant Petition, and it must be dismissed.5 Burton, 549 U.S. at 153.

Pursuant to Rule 11(a) of the Rules Governing Section 2254 and

Section 2255 Cases, the Court declines to issue a certificate of appealability.

See 28 U.S.C. § 2253(c)(2); Miller-El, 537 U.S. at 338 (noting that, in order

to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims

debatable or wrong); Slack, 529 U.S. at 484 (holding that, when relief is

denied on procedural grounds, a petitioner must establish both that the

5 The Petitioner argues that the instant Petition should not be dismissed because the

Petitioner did not personally receive letters from the North Carolina Parole Commission

between 2007 and 2017, and, therefore, allegedly remained unaware of the 2008

changes to the frequency of North Carolina parole hearings. [Docs. 7 at 5-7, 16 at 5-7].

While the Petitioner’s argument has no bearing on whether the instant Petition is “second

or successive” without authorization, the Court notes that § 2244(d)(1)’s one-year statute

of limitations can only be equitably tolled if a petitioner demonstrates: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his

way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010) (internal

quotation marks and citations omitted). Even if the Petitioner could demonstrate that “a

factor beyond [the Petitioner’s] control prevented him from filing within the limitations

period,” Whiteside v. United States, 775 F.3d 180, 185 (4th Cir. 2014) (citation omitted),

the Petitioner has failed to explain how spending ten years without inquiring about the

frequency of parole hearings constitutes diligently pursuing his rights.

dispositive procedural ruling is debatable and that the petition states a

debatable claim of the denial of a constitutional right).

ORDER

IT IS, THEREFORE, ORDERED that the Respondent's Motion to

Dismiss Habeas Petition [Doc. 12] is GRANTED. The Petitioner's pro se

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Doc. 2] is

DISMISSED WITHOUT PREJUDICE as an unauthorized, successive

habeas petition pursuant to 28 U.S.C. § 2244(b)(3)._ Pursuant to Rule 11(a)

of the Rules Governing Section 2254 Cases, this Court declines to issue a

certificate of appealability.

IT IS SO ORDERED.

Signed: September 24, 2021

Martifi Reidinger ey

Chief United States District Judge Ale

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