YORK v. DISMUKES

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RICHARD TODD YORK, )
)
Petitioner, )
)
v. ) 1:25CV372
)
LESLIE DISMUKES, )
)
Respondent. )
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (Docket Entry 1) and in support has filed a supplement (Docket
Entry 5). Petitioner also filed a motion to amend his petition (Docket Entry 7) which
Respondent opposes (Docket Entry 8). Respondent has also filed an answer (Docket Entry
9), a motion to dismiss (Docket Entry 10), and a supporting brief (Docket Entry 11). Petitioner
then filed a motion entitled “Motion to Address” (Docket Entry 12) and a response (Docket
Entry 14) in opposition to the motion to dismiss. This matter is now prepared for a ruling.
Background
In 2002, Petitioner was indicted for first-degree murder, two counts of assault with a
deadly weapon with intent to kill inflicting serious injury, and discharging a weapon into
occupied property. (Doket Entry 8, Ex. 1.) Petitioner’s indictments alleged that on November
13, 2001, Petitioner discharged a twelve-gauge shotgun into a 1989 Eagle Premier located at
South Main Street in High Point, North Carolina. (Id. at 2.) The indictments also alleged that
the vehicle was occupied by three individuals—James Alexander Moore, Zachary Taylor
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Jacobs, and Alicia Marie Jacobs—and that James Alexander Moore died because of the
shooting. (Id. at 2-3.)
On August 14, 2003, Petitioner pled guilty pursuant to a plea agreement to second-
degree murder, one count of assault with a deadly weapon with intent to kill inflicting serious
injury, and discharging a weapon into occupied property. (Docket Entry 8, Ex. 2.) The
transcript of plea form, which Petitioner and his attorney signed, stipulated that Petitioner was
a Level VI prior record offender, with nineteen prior record points. (Id. at 3.) It also confirmed
that sentencing would be in the trial court’s discretion. (Id.)
The same day, August 14, 2003, the trial court sentenced Petitioner to three consecutive
terms of imprisonment: 313-385 months for second-degree murder, 168-211 months for
assault with a deadly weapon with intent to kill inflicting serious injury, and 47-66 months for
discharging a weapon into occupied property. (Docket Entry 8, Ex. 3.) Petitioner did not
appeal to the North Carolina Court of Appeals.1 (See Docket Entry 1 at 2.)
On March 15, 2011, Petitioner filed a Motion for Appropriate Relief (“MAR”) in
Guilford County Superior Court, and on May 26, 2011, Petitioner filed a motion to amend his
MAR. (Docket Entry 8, Ex. 4.) On October 21, 2011, the trial court filed an order denying
Petitioner’s MAR. (Id.) Petitioner did not seek additional review over this order.
In late January or early February of 2016, Petitioner filed a petition for writ of habeas
corpus in Guilford County Superior Court, claiming his judgment was void on the basis of
1 Although Petitioner asserts in his Petition that he sought further review and
specifically mentions the North Carolina Court of Appeals, (see Docket Entry 1 at 2), he may
be mistakenly referring to that court’s review of the denial of his petition for writ of habeas
corpus. (See Docket Entry 8, Exs. 5-8.)
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invalid indictments. (Docket Entry 8, Ex. 5 at 5-11.) Specifically, Petitioner alleged that his
indictments were null under the Sixth Amendment’s “informed clause” for failing to
adequately inform him of his charges and failing to allege all the essential elements of his
offenses. (Id. at 4, 7.) On March 7, 2016, the trial court filed an order summarily denying his
petition for writ of habeas corpus. (Docket Entry 8, Ex. 6.)
On May 27, 2016, Petitioner filed a petition for writ of certiorari in the North Carolina
Court of Appeals seeking review of the trial court’s order denying his petition for writ of
habeas corpus. (Docket Entry 8, Ex. 7.) On June 23, 2016, the North Carolina Court of
Appeals denied Petitioner’s petition for writ of certiorari. (Docket Entry 8, Ex. 8.) On May 5,
2025, Petitioner filed the current petition in this Court. (Docket Entry 1.)
Petitioner’s Grounds
Petitioner alleges four grounds for relief. (Docket Entry 1, Grounds One through
Four.) First, Petitioner contends that he received ineffective assistance of counsel because his
attorney only informed him that he was pleading guilty to second-degree murder and that the
judge could sentence him to “death or life and nothing else[.]” (Id., Ground One). Second,
Petitioner claims that his indictments were improper because he was only named in the caption
and not the body of each indictment. (Id., Ground Two.) Third, Petitioner alleges “lack of
jurisdiction” and “prosecutorial misconduct” because he was not given a page marked
“additional charges” that was part of the transcript of plea form. (Id., Ground Three.) Fourth,
Petitioner “request[s] all viable grounds for relief be available and not be barred to any
potential relief” because he is “a layman at law[.]” (Id., Ground Four.) Petitioner asks this
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Court to “order the State Court to vacate [his] sentence and release [him] from prison.” (Id. at
15.)
In Petitioner’s supplement, he alleges additional facts in support of the first Ground in
his petition. (Docket Entry 5 at 1-2). He also alleges three extra instances of ineffective
assistance of counsel: his attorney disregarded his wishes to go to trial, his attorney failed to
properly investigate medical circumstances leading to the victim’s death “on the operation
table 5 months after the shooting[,]” and his attorney let a prior driving-while-intoxicated
conviction be used against him, resulting in his sentencing as a Level VI prior record offender.
(Id. at 2-6). As explained in greater detail below, these claims are all many years time-barred.
Discussion
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 11 at 5-9.) 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:
Under § 2244(d)(1)(A)-(D), the one-year limitation period begins to
run from the latest of several potential starting dates:
(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;
(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
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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.
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008) (emphasis added). The record does not
reveal any meaningful basis for addressing subparagraphs (B) through (D) of § 2244(d)(1) and
Petitioner has not invoked these subparagraphs.
Under Subparagraph (A), Petitioner’s one-year limitation period began 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.
Petitioner’s criminal State court judgment was entered on August 14, 2003. (Docket
Entry 8, Ex. 3.) Petitioner did not pursue a direct appeal with the North Carolina Court of
Appeals. Petitioner’s conviction thus became final, at the latest, fourteen days later in late
August of 2003. See 28 U.S.C. § 2244(d)(1)(A) (providing that a conviction is final “the date
on which the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review”); see also N.C. R.App. P. 4(a) (10 days to serve notice of
appeal, amended effective October 18, 2001 to allow 14 days). Therefore, Petitioner’s one-
year period of limitation under 28 U.S.C. § 2244(d)(1) commenced in late August of 2003 and
expired 365 days later in late August of 2004. Petitioner dated and filed his petition in May of
2025. (Docket Entry 1.) It is more than twenty years late.
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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 early 2011, a number of years after the limitations period on filing a federal habeas
petition expired. State filings after this limitations period passes do not restart the filing period.
See Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000).
In summary, Petitioner’s statute of limitation began to run in late August of 2003 and
expired 365 days later in late August of 2004. His State post-conviction proceedings did not
entitle him to statutory tolling because they were filed and resolved after the duration of the
limitations period. Petitioner did not submit the instant Petition until May of 2025 more than
twenty years after the expiration of the federal habeas deadline. Petitioner does not dispute
the foregoing time-line, does not meaningfully explain why his Petition was filed more than
one-year after his conviction became final, and does not invoke (or appear to be entitled to)
statutory tolling. (Docket Entries 1 and 5.) His Petition is time-barred.
To the extent Petitioner is asking for equitable tolling, his arguments also fail.
Equitable tolling may apply 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.” See Holland v. Florida, 560 U.S. 631, 648 (2010) (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)). Petitioner fails to satisfy either of these requirements.
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First, to the extent Petitioner pleads ignorance of the one-year deadline, this is not a
basis for equitable tolling. United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Second,
unfamiliarity with the legal process and lack of representation do not constitute grounds for
equitable tolling, because they represent ordinary, rather than extraordinary, circumstances for
a prisoner. See id.; see also Harris v. Hutchinson, 209 F.3d 325, 331 (4th Cir. 2000). Third, the
potential merits of a claim do not impact the timeliness analysis, so any argument along these
lines fails. See Rouse v. Lee, 339 F.3d 238, 251-52 (4th Cir. 2003).
Last, to the extent Petitioner asserts he is actually innocent of the crimes to which he
pled guilty, that claim would also fail to render his petition timely. The Supreme Court
recognized in McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013), an actual innocence exception
to the one-year deadline. 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 (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, Petitioner makes no meaningful effort to meet this standard. For all these
reasons, the Petition is time-barred.
Motion to Amend
In his motion to amend, Petitioner does not allege any new grounds for relief. (Docket
Entry 7.) Rather, Petitioner asks this Court to “add [the] ‘supplement’ filed 6 June 2025
regarding [his] federal habeas corpus petition.” (Id. at 1.) In Petitioner’s supplement, he alleges
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additional facts in support of the first Ground in his petition. (Docket Entry 5 at 1-2.) He also
alleges that he received ineffective assistance of counsel because he wanted to take his case to
trial, his attorney failed to properly investigate medical circumstances leading to the victim’s
death “on the operation table 5 months after the shooting[,]” and his attorney let a prior
driving while intoxicated conviction be used against him, resulting in his sentencing as a Level
VI prior record offender. (Id. at 2-6.)
Rule 15(a) of the Federal Rules of Civil Procedure allows a party to “amend its pleading
once as a matter of course” within 21 days after serving it or within 21 days of the filing of a
responsive pleading. Fed. R. Civ. P. 15(a)(1). If more than 21 days have passed, “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.
R. Civ. P. 15(a)(2). Rule 15(a) further states that “[t]he court should freely give leave when
justice so requires.” Id. Granting a motion to amend is within the discretion of the Court, “but
outright refusal to grant the leave without any justifying reason appearing for the denial is not
an exercise of discretion.” Foman v. Davis, 371 U.S. 178, 182 (1962). The Fourth Circuit has
stated that “[a] district court may deny a motion to amend when the amendment would be
prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment
would be futile.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).
Here, Petitioner’s motion to amend appears to fall under subsection (a)(2) and, because
Respondent does not consent, the amendment may only be allowed with this Court’s leave.
Given that all of Petitioner’s grounds for relief in all of his filings (including his supplement
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and Motion to Address) are time barred for the reasons set forth above,2 it would be futile to
permit Petitioner to amend. Consequently, this motion should be denied as futile.3
Motion to Address
Petitioner has also filed a document entitled “Motion to Address.” (Docket Entry 12.)
It seeks to challenge Petitioner’s guilty plea on the grounds that it was coerced and further on
the grounds that counsel was ineffective for permitting him to plead guilty under those
circumstances. (Id.) Whether this is construed as a new ground or as additional argument for
one of the other grounds Petitioner has raised (or has tried to raise) it is time-barred for the
reasons set forth above. Petitioner knew or should have known about these potential grounds
for relief on or about the date of his guilty plea in 2003. All of his grounds or proposed grounds
are many years time-barred. The motion should be denied.
CONCLUSION
Petitioner’s grounds are time-barred. Neither a hearing, nor discovery, nor the
appointment of counsel are warranted.
2 One of Petitioner’s proposed grounds requires brief discussion. It mentions a
“hearing of some kind, maybe a Rule 24 hearing” where he claims that he learned additional
medical facts about the victim that his lawyer should have investigated from another man in
court at a first appearance. (Docket Entry 5 at 2-3.) But this potential start date does not assist
Petitioner. A “[r]ule 24 hearing” is a pretrial hearing. See North Carolina Gen. R. Pract. Super.
& Dist. Cts. 24 (“Pretrial Conference in Capital Cases”). This means that the Rule 24 hearing
happened, and Defendant learned of the factual predicate for his claim, before trial at the
latest. Consequently, it does not provide a later starting date for the one-year limitations period.
3 Even if the Court granted leave to amend, or had Respondent consented to the same,
the result here would ultimately be identical given that all of Petitioner grounds are time-
barred. Put differently, neither the grant nor the denial of Petitioner’s motion to amend would
change the outcome here – Petitioner’s grounds and proposed grounds are all time-barred.
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IT IS THEREFORE RECOMMENDED that Respondent’s motion to dismiss
(Docket Entry 10) be GRANTED, that Petitioner’s motion to amend (Docket Entry 7) and
“Motion to Address” (Docket Entry 12) both be DENIED, that the Petition (Docket Entry
1) be DISMISSED, that Judgment be entered dismissing this action, and that, there being no
substantial issue for appeal concerning the denial of a constitutional right affecting the
conviction nor a debatable procedural ruling, a certificate of appealability not issue.
/s/ Joe L. Webster
United States Magistrate Judge
November 5, 2025
Durham, North Carolina
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