Castillo v. Perritt

142 F. Supp. 3d 415, 2015 U.S. Dist. LEXIS 147154, 2015 WL 6619979
CourtDistrict Court, M.D. North Carolina
DecidedOctober 30, 2015
DocketNo. 1:15CV32
StatusPublished
Cited by2 cases

This text of 142 F. Supp. 3d 415 (Castillo v. Perritt) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castillo v. Perritt, 142 F. Supp. 3d 415, 2015 U.S. Dist. LEXIS 147154, 2015 WL 6619979 (M.D.N.C. 2015).

Opinion

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Before the court is Respondent’s motion to dismiss Marcelino Garcia Castillo’s pro se petition for a- writ of habeas corpus. (Doc. 9.) Castillo challenges his State custody under 28 U.S.C. § 2254, primarily alleging defective indictment, ineffective assistance of counsel, and illegal search and seizure. (Doc. 2.) For the reasons set forth below, the petition will be dismissed.

I. BACKGROUND

On April 26, 2011, Castillo pleaded guilty to trafficking and conspiracy to traffic 400 grams. or more of cocaine. (Doc. 10-2.) The Superior Court of Guilford County sentenced Castillo to 175-219 months of imprisonment. (Doc. 10-3 at 2-3.) Castillo did not appeal his conviction. (Doc. 2 at 2-3.)

On July 29, 2014, Castillo signed a pro se Motion for Appropriate Relief (“MAR”) in the Superior Court of Guilford County. (Doc. 10-5.) In his MAR, Castillo claimed that the State lacked sufficient evidence to support his conviction, that his indictment failed- to allege an element of his trafficking offense and lacked a statutory citation, and that he was entitled to the mandatory minimum sentence. (See. id .at 6-14.) On August 19, 2014, Castillo signed an amended pro se MAR alleging that his trial counsel failed to preserve his right to appeal upon the entry of the guilty plea, (See Doc. 10-6 at 12.) The Superior Court denied Castillo’s motions. (Doc. 10-8.) Castillo filed a pro se petition for certiorari with the North Carolina Court of Appeals, which was denied on October 15, 2014. (Doc. 2 at 42.) Castillo then filed a pro se petition for certiorari with the North Carolina Supreme Court, which was denied on December 18, 2014. (Id at 22.)

On January 12, 2015, Castillo filed a petition for a writ of habeas corpus with this court. (Id at 1.) Castillo seeks a reduced sentence, a new sentencing hearing, or to have his convictions vacated, and he claims four grounds for relief. (Id at 5-10, 15.) First, he claims that his indictment failed to allege an essential element of an offense for which he was convicted, specifically that he “knowingly” trafficked cocaine, and thus the State court did not have jurisdiction in his case. (Id at 5.) Second, Castillo claims that the State court lacked jurisdiction because his indictment did not include a necessary statutory citation. (Id at 7.) Third, he claims that his sentence exceeds the range to which he agreed in a plea bargain and promised to him by trial counsel. (Id at 8.) Finally, Castillo claims that he was arrested after an illegal search in violation of the Fourth Amendment. (Id at 10.)

Respondent moves to dismiss the petition as untimely. (Docs. 9,10.) In a reply brief, Castillo raises an additional ground for relief. Specifically, he alleges that his trial counsel failed to follow his instruction (through an interpreter) to pursue a direct appeal of his conviction. (Doc. 12 at 6-7.)

[417]*417II. ANALYSIS

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No, 104-132, 110 Stat. 1214, prescribes a one-year limitations period for habeas petitions. 28 U.S.C. § 2244(d)(1). The one-year clock begins to run at the latest of four possible dates, two of which are pertinent here:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the tinie for seeking such 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 one-year clock is tolled during the time State post-conviction proceedings are pending in any State court and may be equitably tolled in “rare instances.” Harris v. Hutchinson, 209 F.3d 325, 328-30 (4th Cir.2000). However, once the limitations period has expired, later-filed State post-conviction petitions cannot revive it. See id. at 327-28 (post-conviction proceedings may suspend, but do not reset, the statute of limitations); Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir.2003) (post-conviction proceedings do not “reset or restart the statute of limitations once the limitations period has expired”).

Here, the statute of limitations bars Castillo’s claims. Judgment was entered against Castillo on April 26, 2011. (Doc. 10-3.) Because Castillo did not appeal that judgment, his conviction became final on or around May 10, 2011, fourteen days after the entry of judgment. See N.C. R.App. P. 4(a)(2). Castillo did not file the present petition until January 12, 2015, more -than three and a half years after the limitations period began .to run under §• 2244(d)(1)(A). .

To the extent that Castillo claims to have recently discovered the bases for his claims, (see Doe. 2 at 13 (“The evidence was newly discovered on October 23, 2014 and November 20, 2014.”)), § 2244(d)(1)(D) does not warrant a later limitations period in this case. Castillo claims that he received a longer sentence than that to which he agreed in a plea bargain, that his arrest was the result of an illegal search, and that his indictment was defective. (Doc. 2.) But Castillo knew or should have known the length of his sentence no later than the date of his sentencing hearing. Similarly, Castillo knew or should have known about his arresting officers’ conduct and the contents of his indictment no later than the date of his plea. See Wade v. Robinson, 327 F.3d 328, 333 (4th Cir.2003) (limitations period not extended under when petitioner could have learned information available from “public sources”). As a result, § 2244(d)(1)(D) does not extend the limitations period for any of Castillo’s claims.1

Castillo contends that his claim should proceed under the actual innocence exception to the limitatións period. See McQuiggin v. Perkins, — U.S.-, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013). In order to satisfy the actual innocence exception, however, a petitioner must “support his allegations of constitutional error with new reliable evidence.” Schlup [418]*418v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Although Castillo summarily alleges that evidence was “newly discovered on October 23, 2014, and November 20, 2014,” he fails to identify or describe this evidence. (Doc. 2 at 13; see also Doc. 12, at 6 (claiming, without elaboration, that “newly discovered evidence ,.. was withheld by the state and prosecutor”).) In the absence of any specific information about this alleged new evidence, Castillo cannot invoke the actual innocence exception. See Schlup, 513 U.S. at 324, 115 S.Ct. 851.

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Cite This Page — Counsel Stack

Bluebook (online)
142 F. Supp. 3d 415, 2015 U.S. Dist. LEXIS 147154, 2015 WL 6619979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castillo-v-perritt-ncmd-2015.