Dugger v. Ishee

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CASE NO. 1:23-cv-00317-MR
EDWARD ROY DUGGER, )
)
Petitioner, )
) ORDER
vs. )
)
TODD ISHEE, Secretary, North )
Carolina Department of Adult )
Correction,1 )
)
Respondent. )
________________________________ )
THIS MATTER comes before the Court on the Petition for Writ of
Habeas Corpus [Doc. 1]. Also before the Court is the Petitioner’s Motion to
Proceed In Forma Pauperis [Doc. 2].
I. BACKGROUND
Edward Roy Dugger (the “Petitioner”) is a prisoner of the State of North
Carolina. The Petitioner was convicted of incest and statutory rape in Avery
County, North Carolina, on August 23, 2018, and sentenced to 40-58 years
1 Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts
requires that “the petition must name as respondent the state officer who has custody” of
the petitioner. Rule 2(a), 28 U.S.C. foll. § 2254. North Carolina law mandates that the
Secretary of the North Carolina Department of Adult Correction is the custodian of all
state inmates. See N.C. Gen. Stat. § 148-4 (2023). Accordingly, Todd Ishee, the current
Secretary of the North Carolina Department of Adult Correction, is the proper respondent
in this action.
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of incarceration. [Doc. 1 at 1]. The Petitioner did not file a direct appeal of
his judgment of conviction. [Id. at 2].
The Petitioner filed a post-conviction Motion for Appropriate Relief
(“MAR”) in the Avery County Superior Court alleging that trial counsel was
ineffective for failing to file a notice of direct appeal after being instructed to
do so. [Id. at 3, 6]. The MAR was denied on September 27, 2019. [Id.]. The
Petitioner filed a Petition for Writ of Certiorari with the North Carolina Court
of Appeals on June 4, 2021, that was dismissed on June 21, 2021. [Id. at 3-
4]. The Petitioner filed a second Petition for Writ of Certiorari with the North
Carolina Court of Appeals on June 2, 2023, that was dismissed on July 27,
2023. [Id.].
The Petitioner filed his § 2254 petition on October 31, 2023. [Doc. 1].
II. DISCUSSION
A. Timeliness of § 2254 Petition
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:
(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;
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(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.
Id. The limitation period is tolled during the pendency of a properly filed state
post-conviction action. 28 U.S.C. § 2244(d)(2).
The Petitioner’s judgment of conviction was entered on August 23,
2018. [Doc. 1 at 1]. His judgment of conviction became final fourteen days
later on September 6, 2018, when the time for seeking direct appeal expired.
See N.C. App. R. 4(a)(2) (providing fourteen days in which to seek appellate
review of criminal judgment and conviction). The one-year statute of
limitations contained in the AEDPA then began running for 365 days and was
set to expire on or about September 6, 2019. See 28 U.S.C. § 2244(d)(1).
The Petitioner filed a post-conviction MAR in Avery County Superior
Court. The Petitioner lists the date of filing of the MAR in his petition as
September 12, 2019, and the Order denying the MAR also lists September
12, 2019, as the date of filing. [Doc. 1 at 3, Doc. 1-1 at 7]. However, in a
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different part of his petition, the Petitioner lists the date of his MAR filing as
August 14, 2019. [Doc. 1 at 14].
While a timely and properly filed MAR may toll the one-year statute of
limitations, if the Petitioner’s MAR was filed on the September date, it was
after the statute of limitations expired and it could not have revived the
limitations period or tolled the time to file a federal habeas petition. 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). If the MAR was filed on the August date, before the
statute of limitations expired, it would have tolled the time to file the present
petition until the Court issued its order on September 27, 2019.
Even giving the Petitioner the benefit of the discrepancy and using the
August date, however, results in Petitioner’s claim being untimely. If the
Petitioner filed his MAR on August 12, 2019, 340 days after his judgment of
conviction became final, he only had 25 days remaining after the disposition
of that motion to file with this Court or to make another state filing to toll the
statute of limitations. The Petitioner made no other filings, however, by his
account, until October 21, 2020, at which point an additional 390 days had
passed from the denial of his MAR. [Doc. 1 at 14]. Therefore, his time to file
a petition with this Court expired on October 27, 2019.
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The Petitioner filed his § 2254 petition in this Court on October 31,
2023. [Doc. 1]. The petition is subject to dismissal unless the Petitioner can
show that he is entitled to statutory tolling of the limitations period under
§ 2244(d)(1) or equitable tolling of limitations period for good cause shown.2
As such, the Court will grant the Petitioner twenty-one (21) days in which to
explain why his § 2254 petition should not be dismissed as untimely,
including any reasons why statutory or equitable tolling should apply. See
Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002).
B. Motion to Proceed In Forma Pauperis
The Petitioner moves this Court for an application to proceed in forma
pauperis. [Doc. 2]. Rule 3(a) of the Rules Governing Section 2254 Cases
requires that a petition be accompanied by the applicable filing fee or motion
for leave to proceed in forma pauperis. Federal courts may excuse the
required fees if the litigant demonstrates that he cannot afford to pay. 28
U.S.C. § 1915(a)(1).
The required filing fee for the § 2254 petition is $5.00. Although the
Petitioner indicates that he has no money in any accounts, his prison trust
2 “Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005).
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account balance at the time of filing his § 2254 petition was $89.00. [Doc. 2
at 2]. As such, the Court finds that the Petitioner has adequate resources to
pay the required $5.00 filing fee. Therefore, the Court will deny the
Petitioner’s motion and order him to pay the $5.00 filing fee within thirty (30)
days of this Order.
IT IS, THEREFORE, ORDERED that:
1. The Petitioner shall, within twenty-one (21) days of entry of this
Order, file a document explaining why his § 2254 petition should not
be dismissed as untimely.
2. The Petitioner’s Motion to Proceed in Forma Pauperis [Doc. 2] is
DENIED. The Petitioner shall pay the required $5.00 filing fee within
thirty (30) days of the entry of this Order.
3. Failure to comply with the provisions of this Order will likely result in
the dismissal of this action.
4. The Clerk of Court is respectfully directed to substitute Todd Ishee,
Secretary of the North Carolina Department of Adult Correction as
the proper Respondent in this action.
IT IS SO ORDERED. Signed: May 27, 2024
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