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Perdono v. Taylor

United States District Court, E.D. North Carolina, Western Division

February 25, 2014

ROMAN DALACIO PERDONO, Petitioner,
v.
FELIX TAYLOR AND ROBERT C. LEWIS, Respondents.

ORDER

LOUISE W. FLANAGAN, District Judge.

Petitioner, a state inmate, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter came before the court on the motion to dismiss (DE 9) pursuant to Federal Rule of Civil Procedure 12(b)(6) of respondent Felix Taylor ("respondent'). The issues raised were fully briefed and are ripe for adjudication. For the following reasons, the court grants respondent's motion to dismiss.

STATEMENT OF CASE

On May 23, 2003, petitioner pleaded guilty, in the Wake County Superior Court, to two counts of first-degree rape, first-degree burglary, and robbery with a dangerous weapon. Pet. Attach. 1, pp. 25-38. The superior court judge consolidated one rape conviction with the first-degree burglary conviction; consolidated the other rape conviction with the armed robbery conviction; and sentenced petitioner to two consecutive terms of four hundred twenty (420) to five hundred thirteen (513) months imprisonment. Id . pp. 35-38. Petitioner did not file a direct appeal.

On November 15, 2004, petitioner petitioned the North Carolina Court of Appeals for certiorari review of his guilty plea and sentencing. Id . pp. 87-89. The court of appeals allowed petitioner's petition, but limited appellate review to those issues that could have been raised on direct appeal pursuant to N.C. Gen. Stat. § 15A-1444(a)(1). Id . On April 17, 2007, the court of appeals entered an order affirming petitioner's sentence in part, but reversed and remanded the case to superior court for re-sentencing on petitioner's rape conviction pertaining to the victim identified as S.J. Id . Specifically, the court of appeals determined that it was reversible error for the sentencing court to aggravate petitioner's sentence for the rape of S.J. by finding that petitioner acted with another, as that was the same evidence that allowed the court to accept the plea of guilty in the first place. Id . p. 96. On May 22, 2007, petitioner petitioned the North Carolina Supreme Court for discretionary review of the court of appeals' order, which the supreme court denied on October 11, 2007. Id . p. 126.

On December 3, 2007, the superior court, acting on remand, re-sentenced petitioner for his consolidated rape and armed robbery convictions to a term of three hundred thirty-six (336) to four hundred thirteen (413) months imprisonment. Pet. Attach. 1, pp. 132-33. Petitioner did not appeal his new sentence for the applicable conviction.

On October 6, 2008, petitioner filed a pro se motion for appropriate relief ("MAR") in the Wake County Superior Court. Id . Attach. 2, pp. 1-18. The superior court denied petitioner's MAR on May 1, 2009. Id . p. 19. Petitioner, on May 6, 2011, filed a second MAR and request for DNA testing in the superior court.[1] Id . pp. 21-34. The superior court denied petitioner's second MAR on May 26, 2011. Id . p. 35. On June 20, 2011, petitioner filed a motion for reconsideration in the superior court, which was denied on September 15, 2011. Id . pp. 46-47.

On June 20, 2011, petitioner filed a second motion for post-conviction DNA testing, which the superior court denied on September 16, 2011. Id . pp. 48-49. On November 3, 2011, petitioner filed a third MAR in the superior court, which was denied on January 13, 2012. Id . pp. 67-68.

On November 21, 2011, petitioner filed a petition for a writ of certiorari with the court of appeals seeking review of the superior court's denial of his second MAR and his motions for DNA testing. Id . p. 66 The court of appeals denied petitioner's certiorari petition on December 8, 2011. Id . On January 9, 2012, petitioner petitioned the supreme court for certiorari review, which the supreme court dismissed on March 8, 2012. Id . p. 79.

On November 29, 2012, [2] petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, petitioner alleges the following: (1) his rights pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution were violated pursuant to the United States Supreme Court's ruling in Blakely v. Washington , 542 U.S. 296 (2004);[3] (2) his due process rights were violated because the trial court imposed consecutive sentences; (3) his due process rights were violated because his guilty plea was involuntary, unknowing, and unintelligent; and (4) he received ineffective assistance of counsel. Respondent subsequently filed a motion to dismiss, arguing that petitioner's claims are time-barred, to which petitioner responded.

DISCUSSION

A. Motion to Dismiss

1. Standard of Review

A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin , 980 F.2d 943, 952 (4th Cir. 1992). A claim is stated if the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 677 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, " but does not consider "legal conclusions, elements of a cause of action, ... bare assertions devoid of further factual enhancement[, ]... unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, this ...


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