1:25-cv-00372•YORK v. DISMUKES
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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 Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 1 of 10
2 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.) Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 2 of 10
3 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 Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 3 of 10
4 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 Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 4 of 10
5 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. Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 5 of 10
6 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. Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 6 of 10
7 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 Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 7 of 10
8 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 Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 8 of 10
9 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. Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 9 of 10
10 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 Case 1:25-cv-00372-WO-JLW Document 15 Filed 11/05/25 Page 10 of 10
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