Byrd v. Van Gorder

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CASE NO. 3:23-cv-00178-MR

JAMEL BYRD, )

a/k/a Jamel Byrd Price, )

)

Petitioner, )

) ORDER

vs. )

)

ROBERT VAN GORDER, Warden )

at Sampson Correctional Institution, )

)

Respondent. )

________________________________ )

THIS MATTER comes before the Court upon the Response filed by

the Petitioner on May 1, 2023 [Doc. 5], following this Court’s Order [Doc. 4]

directing the Petitioner to address why his § 2254 petition should not be

dismissed as untimely.

I. BACKGROUND

Jamel Byrd (the “Petitioner”) is a prisoner of the State of North

Carolina. The Petitioner pleaded guilty to second-degree murder and

assault with a deadly weapon with intent to kill on February 26, 1996 in the

Mecklenburg County Superior Court. The Petitioner was sentenced to a term

of thirty years’ imprisonment. [Doc. 1 at 1]. The Petitioner did not file a direct

appeal of his judgment of conviction. [Id. at 2].

The Petitioner states that he filed a postconviction Motion for

Appropriate Review (“MAR”) in Mecklenburg County Superior Court that was

denied. [Id. at 3]. However, the Petitioner does not state the date of filing of

the MAR or the date the MAR was denied. The Petitioner also states that he

filed a Petition for Writ of Habeas Corpus in the North Carolina Court of

Appeals on February 28, 2023, that was denied on March 7, 2023. [Id. at 6;

Doc. 1-1 at 1].

The Petitioner filed his Petition for Writ of Habeas Corpus in this Court

on March 23, 2023. [Doc. 1]. Following the Court’s initial review of the

petition, the Court entered an Order directing the Petitioner to show cause

why the petition should not be dismissed as untimely. [Doc. 4]. The

Petitioner filed his Response on May 1, 2023. [Doc. 5].

II. DISCUSSION

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

provides a statute of limitations for § 2254 petitions by a person in custody

pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The petition

must be filed within one year of the latest of 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)(A). The limitation period

may be tolled during the pendency of a properly filed application for State

post-conviction action. 28 U.S.C. § 2244(d)(2).

Because the Petitioner did not file a direct appeal, his judgment and

conviction became final fourteen days later on March 11, 1996, when the

time for seeking review expired. See N.C. R. App. P. 4(a)(providing fourteen

days in which to file notice of appeal). The one-year statute of limitations

contained in the AEDPA then began running for 365 days until it expired on

or about March 11, 1997. See 28 U.S.C. § 2244(d)(1).

The Petitioner provides no information showing that he filed any post-

conviction proceeding in state court before the one-year statute of limitations

expired. Although the Petitioner filed a Petition for Writ of Habeas Corpus

in the North Carolina Court of Appeals on February 28, 2023 [Doc. 1-1 at 1],

such filing would not revive the already-expired statute of limitations. See

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

applications for collateral review cannot revive an already expired federal

limitations period).

The Court directed the Petitioner to show cause why the petition should

not be dismissed as untimely, including any reasons why statutory tolling

under § 2244(d)(1)(B)-(D) or equitable tolling should apply. [Doc. 4].

Equitable tolling of the statute of limitations for an otherwise untimely § 2254

petition may apply where the petitioner demonstrates “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way” to prevent timely filing. Holland v. Florida, 560 U.S. 631,

649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). It is appropriate in those “rare

instances where—due to circumstances external to the party's own

conduct—it would be unconscionable to enforce the limitation period against

the party and gross injustice would result.” Rouse v. Lee, 339 F.3d 238, 246

(4th Cir. 2003)(quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.

2000)).

In his Response, the Petitioner asks this Court to apply equitable tolling

to excuse the untimely filing of his petition. [Doc. 5]. The Petitioner points

out that his conviction occurred before enactment of the AEDPA, thus

suggesting the one-year statute of limitations is not applicable. [Doc. 5 at 1-

2]. The Petitioner states that he exercised due diligence by filing his Petition

for Writ of Habeas Corpus with the North Carolina Court of Appeals but

complains that the appellate court did not provide him with a summary of the

reasons for its denial of the petition or the opportunity to cure any defects.

[Doc. 5 at 2]. The Petitioner further argues that as a juvenile, he was ignorant

of the material facts and did not have access to a legal services organization,

legal materials, or a law library, and had no means of conducting legal

research until almost a year ago through a tablet provided at his corrections

facility. [Id.].

The Petitioner’s suggestion that the AEDPA’s statute of limitations is

inapplicable to him because it was enacted after his February 26, 1996

conviction is without merit. See Brown v. Angelone, 150 F.3d 370, 375 (4th

Cir. 1998)(prisoners whose convictions became final prior to the April 24,

1996 effective date of the AEDPA had a grace period until April 24, 1997 in

which to file habeas petitions). See also Williams v. Taylor, 529 U.S. 420,

429, 120 S.Ct. 1479, 1486, 146 L.Ed.2d 435 (2000)(noting that the AEDPA

applies to cases where a petitioner files his federal habeas petition after the

effective date of the AEDPA). Plaintiff has presented nothing to show that

he filed a MAR during such grace period.

The Petitioner does not allege sufficient facts that identify any

extraordinary circumstances that occurred to prevent him from timely filing

his § 2254 petition. The Petitioner’s complaints concerning access to legal

assistance or legal research materials do not constitute the type of

extraordinary circumstances or egregious misconduct to justify the

application of equitable tolling. See Garcia Negrete v. United States, 2020

WL 2041342, *2 (W.D.N.C. April 28, 2020)(lack of legal knowledge and lack

of law library access do not warrant equitable tolling); Buchnowski v. White,

2013 WL 171540, * 3 (W.D.N.C. January 16, 2013)(absence of law libraries

is not grounds for equitable tolling); Henriquez v. United States, 2012 WL

1564158, *2 (E.D.N.C. May 2, 2012)(access to legal materials typically are

not grounds for equitable tolling); United States v. Sosa, 364 F.3d 507, 512

(4th Cir. 2004)(even in the case of an unrepresented prisoner, ignorance of

the law is not a basis for equitable tolling).

The Petitioner fails to show that he diligently pursued his rights and

cannot satisfy his burden for equitable tolling to demonstrate good cause for

the late filing of his § 2254 petition. As such, the § 2254 petition shall be

dismissed as untimely.

III. CONCLUSION

For the reasons stated herein, the § 2254 Petition for Writ of Habeas

Corpus [Doc. 1] shall be dismissed as untimely, as the Petitioner fails to

establish that he is entitled to statutory or equitable tolling.

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

the Court declines to issue a certificate of appealability. See 28 U.S.C. §

2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)(noting that, in

order to satisfy § 2253(c), a prisoner must demonstrate that reasonable

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

debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000)(holding

that, when relief is denied on procedural grounds, a prisoner must establish

both that the dispositive procedural ruling is debatable and that the petition

states a debatable claim of the denial of a constitutional right).

IT IS, THEREFORE, ORDERED that:

1. The Petition for Writ of Habeas Corpus [Doc. 1] is DISMISSED.

2. The Court declines to issue a certificate of appealability pursuant

to Rule 11(a) of the Rules Governing Section 2254 Cases.

IT IS SO ORDERED.

Signed: June 2, 2023

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