GUEVARA v. PARSONS et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JORDAN MENDOZA GUEVARA, )
)
Petitioner, )
)
v. ) 1:24CV713
)
MICHAEL PARSONS, Warden, )
Scotland Correctional Institution, )
et al., )
)
Respondents. )
MEMORANDUM OPINION AND 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 2.) Respondents moved to dismiss the Petition on grounds of
untimeliness (Docket Entry 12; see also Docket Entry 13 (Supporting
Brief)), and Petitioner responded in opposition (Docket Entries 15,
16). For the reasons that follow, the Court should grant
Respondents’ instant Motion to Dismiss, and dismiss the Petition as
untimely.
I. Procedural History
On October 4, 2017, in the Superior Court of Alamance County,
a jury found Petitioner guilty of rape of a child by an adult,
incest, and indecent liberties with a child in case 15CRS50308.
(See Docket Entry 2, ¶¶ 1, 2, 4-6; see also Docket Entry 13-5 at
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7.)1 The trial court sentenced Petitioner to 345 to 474 months’
imprisonment on the rape conviction, a consecutive term of 345 to
474 months’ imprisonment on the incest conviction, and another
consecutive term of 23 to 37 months on the indecent liberties
conviction. See State v. Guevara, No. COA18-582, 264 N.C. App.
250, 823 S.E.2d 695 (table), 2019 WL 1040651, at *1 (Mar. 5, 2019)
(unpublished). Petitioner filed a direct appeal (see Docket Entry
2, ¶¶ 8, 9(a), (b)), and the North Carolina Court of Appeals
“conclude[d] there was no error in [Petitioner]’s trial but
remand[ed] for resentencing[,]” because the trial court
“erroneously sentenced [Petitioner] in the aggravated range for
incest based upon the aggravating factor of [a] caretaking
relationship [with the victim,]” and “the factor of being in ‘a
position of trust or confidence, including a domestic relationship,
to commit the offense’ was an element of the crime of incest.”
Guevara, 2019 WL 1040651, at *1 (quoting N.C. Gen. Stat.
§ 15A-1022.1, and citing N.C. Gen. Stat. § 14-178) (brackets and
internal citation omitted). Petitioner did not seek further direct
review (see Docket Entry 2, ¶ 9(g)) and, on August 22, 2019, the
trial court resentenced Petitioner on the incest conviction to a
1 Throughout this document, pin citations to page numbers refer to the page
numbers that appear in the footer appended to documents upon their docketing in
the CM/ECF system.
2
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consecutive term of 221 to 326 months in prison (see Docket Entry
2, ¶¶ 3, 5; see also Docket Entry 13-5 at 11-12).2
Petitioner thereafter submitted a pro se motion for
appropriate relief (“MAR”) to the trial court (see Docket Entry 2,
¶ 11(a); see also Docket Entry 13-3), which he dated as signed on
September 15, 2022 (see Docket Entry 13-3 at 10, 11), and which
that court accepted as filed on October 25, 2022 (see id. at 2).
On January 23, 2023, the trial court entered an order denying
Petitioner’s MAR (Docket Entry 13-5 at 21-23), because
“[Petitioner] ha[d] failed to provide affidavits or documentary
support for his allegations [of ineffective assistance of trial
counsel]” under N.C. Gen. Stat. § 15A-1420(b)(1) (see id. at 22).3
Petitioner then submitted a pro se petition for writ of
certiorari to the North Carolina Court of Appeals seeking review of
2 The trial court issued amended judgments dated August 22, 2019, on
Petitioner’s rape and indecent liberties convictions that reflected the same
sentences as Petitioner originally received. (See Docket Entry 13-5 at 9-10, 13-
14.)
3 After the trial court denied Petitioner’s MAR, he sent a letter to the
clerk of the trial court, which the clerk file-stamped on April 24, 2023, stating
that Petitioner had “filed” a “Notice of Appeal” with the clerk seeking to appeal
the denial of his MAR to the North Carolina Court of Appeals, and that the appeal
“c[ould] not go forward until Appella[te] Entries [we]re made at the [trial]
court.” (Docket Entry 13-4 at 4.) Petitioner followed that letter with a second
written communication to the clerk of the trial court dated June 2, 2023, and
received by the clerk on June 9, 2023, again asking the clerk to enter
“Appella[te] [E]ntries” in his case. (Id. at 5.) Ultimately, Petitioner filed
a “Petition for Writ of Mandamus” in the North Carolina Court of Appeals (Docket
Entry 13-5 at 15-19), which that court accepted as filed on January 29, 2024 (see
id. at 20), requesting that court to compel the trial court to issue the
“Appella[te] Entries” (id. at 18). The North Carolina Court of Appeals dismissed
that mandamus petition on January 30, 2024, “without prejudice to [Petitioner]’s
right to seek relief through a petition for writ of certiorari.” (Id. at 20
(citing N.C. Gen. Stat. § 15A-1422(c)(3), and N.C. R. App. P. 21(a)(1)).)
3
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the trial court’s denial of his MAR (see Docket Entry 2, ¶ 11(b);
see also Docket Entry 13-5), which he dated as signed on March 12,
2024 (see Docket Entry 13-5 at 4), and which that court accepted as
filed on July 9, 2024 (see id. at 2). The North Carolina Court of
Appeals denied the certiorari petition by order dated July 19,
2024. (Docket Entry 13-6.)
Petitioner subsequently filed the instant Petition on August
16, 2024. (Docket Entry 2 at 15.)4 Respondents moved to dismiss
the Petition on grounds of untimeliness (Docket Entry 12; see also
Docket Entry 13 (Supporting Brief)) and Petitioner submitted a
response in opposition to Respondents’ instant Motion (see Docket
Entries 15, 16). For the reasons that follow, the Court should
grant Respondents’ instant Motion, because Petitioner submitted his
Petition outside of the one-year limitations period.
II. Grounds for Relief
The Petition asserts one ground for relief: “[i]neffective
[a]ssistance of [c]ounsel in violation of the U.S. and N.C.
Constitutions [w]hen trial counsel advised [Petitioner] he would
win at trial.” (Docket Entry 2, ¶ 12(Ground One); see also id.,
¶ 12(Ground One)(a) (setting forth as “[s]upporting facts” that
“[trial counsel] was ineffective when he withheld information about
a plea offer from the state until the offer expired then advised
4 Under Rule 3(d) of the Rules Governing Section 2254 Cases in United
States District Courts, the Court deems the instant Petition filed on August 16,
2024, the date Petitioner signed the Petition (under penalty of perjury) as
submitted to prison authorities (see Docket Entry 2 at 15).
4
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[Petitioner] he would win at trial when the result of the trial is
that the offer had [Petitioner] known it was availible [sic] would
have a substantially different outcome”).)
III. Discussion
Respondents move for dismissal of the Petition on the grounds
that the Petition was filed outside of the one-year limitations
period of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), see 28 U.S.C. § 2244(d)(1). (See Docket Entry 12; see
also Docket Entry 13 at 5-10.) In order to assess Respondents’
statute of limitations argument, the Court must first determine
when Petitioner’s one-year period to file his Petition commenced.
The United States Court of Appeals for the Fourth Circuit has
explained:
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
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review; or
5
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(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). The Court
must determine timeliness on claim-by-claim basis. See Pace v.
DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).
Respondents argue that subparagraphs (B) and (C) of Section
2244(d)(1) do not apply, because “[t]he [ P]etition does not
suggest that its filing was delayed by governmental impediment, or
that the filing was based on a new right made retroactive.”
(Docket Entry 13 at 6.) Respondents further assert that
subparagraph (D) remains inapplicable, because “[G]round [One] does
not appear to be based on the discovery of any new factual
predicate.” (Id. (citing Docket Entry 13-3 at 8-9).) Respondents
thus contend that the Petition qualifies as untimely under
subparagraph (A), because Petitioner’s convictions finalized on
September 6, 2019, the day following expiration of the fourteen-day
period for Petitioner to appeal the trial court’s resentencing
judgments entered on August 22, 2019. (See id. at 7 (citing N.C.
R. App. P. 4(a)(2) (allowing 14 days to appeal from criminal
judgment).) According to Respondents, AEDPA’s limitations period
thereafter expired on September 8, 2020,5 nearly four years before
Petitioner submitted the instant Petition to prison authorities on
5 September 6, 2020, fell on a Sunday, and the Labor Day holiday fell on
the next day, Monday, September 7, 2020.
6
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August 16, 2024. (See id.) Notably, Petitioner does not dispute
that subparagraph (A) applies as the operative commencement of the
limitations period. (See Docket Entries 2, 16.)
The Petition qualifies as untimely under subparagraph (A),
because the limitations period under that subparagraph began to run
on September 6, 2019, the day after Petitioner’s appeal rights
expired on the fourteenth day following the trial court’s entering
of the resentencing judgments on August 22, 2019. See Gonzalez v.
Thaler, 565 U.S. 134, 149-50 (2012) (holding that a petitioner’s
case becomes final when the time for pursuing direct review
expires); see also N.C. R. App. P. 4(a)(2) (allowing 14 days to
appeal from criminal judgment). The limitations period then
continued to run, unimpeded, until it expired one year later on
Tuesday, September 8, 2020. Petitioner did not submit his instant
Petition to prison authorities until August 16, 2024 (see Docket
Entry 2 at 15), nearly four years out of time. Moreover,
Petitioner’s MAR and certiorari petition did not toll the
limitations period, because Petitioner filed those documents on
December 15, 2022, and July 9, 2024, respectively, well after the
one-year statute of limitations under subparagraph (A) had already
run, such that those belated filings could not toll the limitations
period, see Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000)
(finding that state filings made after expiration of federal
limitations period do not restart or revive that period).
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In the portion of the Petition requesting an “expla[nation why
the one-year statute of limitations as contained in 28 U.S.C.
§ 2244(d) does not bar [the P]etition[,]” Petitioner stated as
follows:
I have diligently sought releif [sic] in this case[.] I
have maintained my statement and innocense [sic]. I have
exhausted my state remedies, but nothing in this journey
prepares you to have to learn a language and a society’s
laws, but to find once I can read this new language I’m
too late by a day. I had my sentence remanded and
resentened [sic] in 2019, where Covid was just starting,
and prisons were locking down. I did however maintain my
filings, so collectively to view the whole picture I’m
pretty close to being on time as it is. Please consider
these hardships when considering my timeliness. Also
during my last 5 years of incarceration, I have struggled
with terminal cancer through these filings, which causes
all kinds of scheduling issues.
(Docket Entry 2, ¶ 18; see also Docket Entry 16 at 2 (“Petitioner
did all he could to maintain timely filing. [D]uring the Covid-19
epidemic there were multiple lockdowns for unpresidented [sic]
amounts of time[.] [M]ail was almost non[-]existent (no-contact)
if possible was the officer [sic] policy [] at [Petitioner’s]
institution. [He] was extremely fourtunate [sic] to get anything
filed.”).) Affording Petitioner’s assertions the liberal
construction due a pro se litigant, see generally Erickson v.
Pardus, 551 U.S. 89, 94 (2007), the Court could interpret those
assertions as an argument that equitable tolling should apply
because 1) he lacked proficiency in the English language; 2) he did
not understand the applicable laws; 3) he missed the filing
deadline by only one day; 4) Covid prison lockdowns interfered with
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timely filing; and 5) terminal cancer caused scheduling problems
(see Docket Entry 2, ¶ 18).
The United States Supreme Court has ruled that equitable
tolling applies to the limitations period under AEDPA, but that a
petitioner must show “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in
his way’ and prevented timely filing.” Holland v. Florida, 560
U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)) (emphasis added). In that regard, the Fourth Circuit
has advised that “invocation of equit[able tolling] to relieve the
strict application of a statute of limitations must be guarded and
infrequent,” and “reserved for 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.” Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000). As explained in more detail below,
Petitioner’s above-quoted statement demonstrates neither diligence
in pursuing his claims in a timely manner, nor an extraordinary
circumstance that prevented him from timely submitting the
Petition.
Courts have long held that neither a lack of proficiency in
English nor ignorance of the law constitute “extraordinary
circumstance[s],” Holland, 560 U.S. at 649, that qualify a
petitioner for equitable tolling, see United States v. Montano, 398
9
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F.3d 1276, 1280 n.5 (11th Cir. 2005) (concluding that “difficulties
with the English language” do not warrant equitable tolling);
United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)
(“[I]gnorance of the law is not a basis for equitable tolling.”);
Alenjandro Silva v. Perry, No. 1:15CV167, 2015 WL 10891651, at *2
(M.D.N.C. May 7, 2015) (unpublished) (Eagles, J.) (“[Petitioner]
contends that he should not be held to the one-year limitations
period because he does not speak English and is a layman at law.
Neither of these reasons warrant tolling the limitations
period[.]”); Chautla v. Young, No. 1:12CV771, 2013 WL 422859, at
*3–4 (M.D.N.C. Feb. 4, 2013) (unpublished) (collecting cases and
holding that “language-related difficulties fail to provide a basis
for equitable tolling”), recommendation adopted, 2013 WL 1120851
(M.D.N.C. Mar. 18, 2013) (unpublished) (Eagles, J.).
With regard to Petitioner’s assertion that he missed the one-
year filing deadline “by a day” (Docket Entry 2, ¶ 18), the
discussion above, demonstrating that he filed the instant Petition
nearly four years out of time, defeats any such argument.
Moreover, courts have long recognized that the degree of tardiness,
e.g., missing the deadline by only one day, does not constitute a
proper ground for equitable tolling. See In re Lewis, 484 F.3d
793, 796 (5th Cir. 2007) (“[The petitioner]’s filing deadline was
December 7, 2006. . . . [His] application was not filed until
December 8, 2006. As a result, [his] application is barred by
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AEDPA’s statute of limitations and must be denied[.]”); Lookingbill
v. Cockrell, 293 F.3d 256, 265 (5th Cir. 2002) (“AEDPA relies on
precise filing deadlines to trigger specific accrual and tolling
provisions. Adjusting the deadlines by only a few days in both
state and federal courts would make navigating AEDPA’s timetable
impossible. Such laxity would reduce predictability and would
prevent [the court] from treating the similarly situated
equally. [The court] consistently ha[s] denied tolling even where
the petition was only a few days late.”); United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (“[The] petition was
filed a day late, and [the district court] properly dismissed it as
untimely. Foreclosing litigants from bringing their claim because
they missed the filing deadline by one day may seem harsh, but
courts have to draw lines somewhere, statutes of limitation protect
important social interests, and limitation periods work both ways
— you can be sure [the petitioners] would not be pooh-poohing the
prosecution’s tardiness if they had been indicted one day after the
statute of limitations expired for their crimes.” (internal
citation omitted)); Batiste v. Vannoy, No. 6:18CV1601, 2019 WL
5296494, at *2 (W.D. La. July 24, 2019) (unpublished) (“[T]he
petition was filed one day after the AEDPA statute of limitations
expired . . . Although [the] petitioner’s delay was not lengthy,
the magnitude of a petitioner’s tardiness is not a proper
consideration in determining the timeliness of a federal habeas
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application.” (internal quotation marks and brackets omitted)),
recommendation adopted, 2019 WL 5296500 (W.D. La. Oct. 18, 2019)
(unpublished).
Petitioner’s next argument that Covid-related prison lockdowns
prevented him from filing his Petition before the AEDPA deadline
expired similarly falls short. “Courts in the Fourth Circuit have
routinely found that non-specific claims that a petitioner was
unable to pursue his rights diligently due to the COVID-19 pandemic
do not constitute extraordinary circumstances that warrant
equitable tolling.” Jones v. Clarke, No. 2:22CV251, 2023 WL
6155277, at *5 (E.D. Va. July 7, 2023) (unpublished) (collecting
cases), recommendation adopted, 2023 WL 6149872 (E.D. Va. Sept. 20,
2023) (unpublished), appeal dismissed sub nom. Jones v. Dotson, No.
23-7082, 2024 WL 1406225 (4th Cir. Apr. 2, 2024). Here, Petitioner
has neither identified the dates during which he remained under a
prison lockdown, nor explained why he could not have filed the
Petition during times when he did not face a prison lockdown (see
Docket Entry 2, ¶ 18; see also Docket Entry 16), particularly given
that the one-year limitations period in this case began to run on
September 6, 2019, and the first confirmed case of Covid in North
Carolina occurred nearly six months later on March 3, 2020, see
https://www.ncdhhs.gov/news/press-releases/2020/03/03/north-
carolina-identifies-first-case-covid-19 (last visited Nov. 25,
2025).
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Lastly, Petitioner’s contention that “terminal
cancer . . . cause[d] all kinds of scheduling issues” (Docket Entry
2, ¶ 18) fails to present a sufficient basis for equitable tolling.
“While [] cancer treatment may qualify as an extraordinary
circumstance,” Lewis v. United States, No. 8:21CV3484, 2022 WL
16638351, at *3 (D.S.C. Nov. 2, 2022) (unpublished) (emphasis
added), “a medical condition generally does not warrant equitable
tolling unless the petitioner specifies ‘why his medical condition
barred him from filing his habeas petition’ on time[,]” Thompson v.
United States, No. CR 17-0195, 2024 WL 5145939, at *3 (D. Md. Dec.
17, 2024) (unpublished) (quoting Rouse v. Lee, 339 F.3d 238, 248
(4th Cir. 2003 (en banc)). Here, Petitioner failed to identify any
particular “scheduling issues” his cancer caused, let alone explain
how those “scheduling issues” prevented him from timely filing his
Petition. (See Docket Entry 2, ¶ 18; see also Docket Entry 16.)
In sum, Petitioner has not provided any valid basis for
equitable tolling of the limitations period, and the Petition thus
faces a time bar under AEDPA.
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IV. Conclusion
The statute of limitations bars the Petition.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion to
Dismiss (Docket Entry 12) be granted, that the Petition (Docket
Entry 2) be dismissed, and that a judgment be entered dismissing
this action, without issuance of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 26 , 2025
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