JOE L. WEBSTER, Magistrate Judge.
Petitioner, a State prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 2.) Respondent has filed an Answer (Docket Entry 4), a Motion for Summary Judgment (Docket Entry 5), and a Brief in Support of the Motion for Summary Judgment (Docket Entry 6). Petitioner, in turn, filed a Response (Docket Entry 8), a Motion to Amend (Docket Entry 9), a Motion for the Appointment of Counsel (Docket Entry 12), and a Brief in support of the same (Docket Entry 13). Respondent filed a Response (Docket Entry 10) to Petitioner's Motion to Amend (Docket Entry 9) and, in turn, Petitioner filed a Reply (Docket Entry 11). This matter is now prepared for a ruling.
On May 7, 2009, in Superior Court, Guilford County, Petitioner was convicted by a jury of trafficking cocaine by selling 28-200 grams; trafficking cocaine by selling 200-400 grams; and attempted trafficking by attempting to sell 400 grams or more of cocaine. (Docket Entry 2, §§ 1-6; Docket Entry 6, Ex. 2 at 35-37.
On February 29, 2012, Petitioner filed a motion for the preparation of a stenographic transcript in Superior Court, Guilford County (Docket Entry 6, Ex. 7), which was denied on December 10, 2012. (Id., Ex. 9.) Also on February 29, 2012, Petitioner filed a Motion for Appropriate Relief ("MAR") in Superior Court, Guilford County. (Id., Ex. 8.) The status of this MAR remains unclear.
Petitioner contends: (1) he was denied his right to appeal; (2) he had a prior history of problems with law enforcement officers before the crimes, and counsel failed to investigate for mitigating evidence; (3) his Sixth Amendment confrontation right was violated and counsel provided ineffective assistance thereto, and all of Petitioner's Miranda rights were violated; and (4) counsel provided ineffective assistance by failing to investigate and present witnesses recommended by Petitioner. (See id. § 12.)
Respondent requests dismissal on the ground that the Petition was filed beyond the one-year limitation period imposed by 28 U.S.C. § 2244(d)(1). (Docket Entry 5.) In order to assess this argument, the Court first must determine when Petitioner's one-year period to file his § 2254 petition commenced. In this regard, the United States Court of Appeals for the Fourth Circuit has explained that:
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008) (emphasis added). The record does not reveal any basis for concluding that Subparagraphs (C) and (D) of § 2244(d)(1) apply here.
Under Subparagraph (A), Petitioner's one-year limitation period commenced on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The Court must therefore ascertain when direct review (or the time for seeking direct review) of Petitioner's underlying conviction(s) ended. Here, Petitioner appealed his State court convictions and the North Carolina Court of Appeals found no error in his convictions or sentences on September 7, 2010.
It is true that Petitioner did make certain State collateral filings, which generally toll the federal habeas deadline for "the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review)." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). Yet, Petitioner did not make any collateral filings in the State courts until February 29, 2012, when he requested a stenographic transcript and filed his MAR; yet, this was a number of months after his one year deadline on filing a federal habeas petition had expired on October 12, 2011.
The Court notes too that the remand of the North Carolina Court of Appeals for the correction of a potential clerical error addressed, at most,
With that in mind, the Court notes that Petitioner specifically invokes Subparagraph (B). Specifically, Petitioner contends that his Petition should proceed regardless of the one-year limitation because:
(Docket Entry 2, § 18; see also Docket Entry 8 at 8-9; Docket Entry 13 at 7.) Any attempt here to invoke Subparagraph (B) by asserting a Brady violation fails, however. This is because Petitioner's Brady allegation is fatally vague and conclusory.
Petitioner may also be contending that his Petition should proceed regardless of the one-year limitation period because his claims have merit. However, the potential merits of a claim generally do not affect the timeliness analysis. See Rouse v. Lee, 339 F.3d 238, 251-52 (4th Cir. 2003). Simply put, there is no merits based exception to the one-year limitation period—though there is an actual innocence exception, addressed below.
The doctrine of equitable tolling applies to the time bar set forth in § 2244. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling may excuse an otherwise untimely filing when a petitioner "shows `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Nothing on the record suggests that Petitioner meets either prong here, however.
First, to the extent Petitioner asserts he is ignorant of the law, the Court notes that ignorance of the law is not a basis for equitable tolling. United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Second, insofar as Petitioner contends that he has language-based issues that prevented the timely filing of his federal habeas Petition (Docket Entry 11 at 2), the Court notes that purported language-related difficulties are also generally insufficient to warrant equitable tolling, especially where, as here, Petitioner has filed timely pleadings in English. (See, e.g., Docket Entry 8.) See, e.g., Gutierrez v. Harkleroad, No. 1:11CV162, 2011 WL 4023869, *4-6 (M.D.N.C. Sept. 9, 2011) (concluding that the petitioner's claim that he could not speak English and needed assistance in having documents translated did not warrant equitable tolling) (collecting cases).
Third, Petitioner also appears to be contending that North Carolina Prisoner Legal Services ("NCPLS") prevented him from complying with the statutory deadline.
Fourth, if Petitioner is asserting that he is entitled to equitable tolling because of the State's denial of his motion for transcripts, or the State's failure to provide him transcripts in a more timely manner, (Docket Entry 12 at 3), that argument also fails.
Last, the Court notes that in McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013), the Supreme Court recognized an actual innocence exception to the limitations statute. To establish actual innocence, "a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867 (1995); see McQuiggin, 133 S. Ct. at 1935. "To be credible, such a claim requires 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. Here, at most, Petitioner has done nothing more than assert in a conclusory manner that he is actually innocent of the crimes for which he was convicted. (See, e.g., Docket Entry 2, § 6.) This is insufficient to avoid or toll the limitation period.
In summary, Petitioner's statute of limitation began to run on October 12, 2010 and expired one year later on October 12, 2011 and neither his State, nor his federal, postconviction filings render the instant Petition (Docket Entry 2) timely. Petitioner did not submit the instant Petition until, at the earliest, January 6, 2015; which is over three years after the expiration of the federal habeas deadline. It is therefore untimely and should be dismissed. In the end, Petitioner is not entitled to statutory or equitable tolling, his Petition was filed out of time, and Respondent's Motion should be granted. An evidentiary hearing in this matter is not warranted.
Petitioner has filed a second set of § 2254 forms, which has been docketed as a motion to amend. (Docket Entry 9.) Petitioner proposes four claims. The first is that he was provided ineffective assistance of counsel because trial counsel did not have enough time to prepare for trial, was ineffective in gathering pre-trial discovery, and was not properly prepared for trial. (Id., § 12, Ground One.) The second is that there was a Brady violation because two confidential informants were not present at trial. (Id., Ground Two.) While not entirely clear, Petitioner may also be claiming that documentation related to these two confidential informants was withheld. (Id.) Petitioner's third proposed claim is that he was denied his right to "present evidence or documents for his defence." (Id., Ground Three.) This evidence purportedly relates to Petitioner's prior difficulties with law enforcement. (Id.) Petitioner's last proposed claim is that his convictions were "obtained by the violation of the protection against double jeopardy." (Id., Ground Four.)
Federal Rule of Civil Procedure 15 governs a motion to amend in a habeas case. Because Petitioner filed his motion to amend far more than 21 days after the service of his Petition or the filing of a responsive pleading, he may amend only with leave of Court or the consent of Respondent. See Fed.R.Civ.P. 15(a). Respondent has not consented to the amendment. (Docket Entry 10.) As for leave of the Court, "leave to amend shall be given freely, absent bad faith, undue prejudice to the opposing party, or futility of amendment." United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000).
Permitting Petitioner to amend as proposed here would be a futile gesture, because his proposed amendments are time-barred. As noted, Petitioner's original § 2254 Petition (Docket Entry 2) is untimely and equitable tolling does not apply. Likewise, the proposed amended § 2254 Petition (Docket Entry 9) is also untimely—it was filed roughly three months after the first Petition, which itself was more than three-years time-barred—and does not implicate Subparagraphs (B)-(D) of § 2244(d)(1) or warrant any form of tolling, equitable or otherwise. Little more need be said about these proposed amended claims, except perhaps to note that Petitioner's second proposed Petition—like his initial Petition— does again assert that the State prosecution withheld Brady evidence. (Docket Entry 9, ¶ 12, Ground Two.) Again, however, Petitioner has failed to set forth facts that would permit a later starting date under § 2244(d)(1)(B)-(D) or permit his claims (old or new) to proceed under the doctrine of equitable tolling. See Nickerson, 971 F.2d at 1136. The pleadings also indicate that Petitioner would have been—or should have been—well aware of the factual predicates for all his claims no later than the time of trial. The Motion to Amend should be denied as futile because, were the amended claims permitted, they would immediately be dismissed as time-barred. See, e.g., Everette v. Lewis, No. 5:10-HC-2034-D, 2011 WL 683922 (E.D.N.C. Feb. 17, 2011).
Petitioner also requests the appointment of counsel. (Docket Entry 12.) However, the matters cited by Petitioner in his pleadings reflect conditions faced by virtually all prisoner litigants and thus, by definition, do not qualify as circumstances of the sort that warrant appointment of counsel. Nor is it apparent that Petitioner either has a colorable claim or lacks the ability to present any such claim. Petitioner has not demonstrated good cause for the appointment of counsel, nor has he shown that justice requires the appointment of counsel. The request is denied.
