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Moore v. Harkelroad

United States District Court, W.D. North Carolina, Asheville Division

February 28, 2014

JACK P. MOORE, Petitioner,


FRANK D. WHITNEY, Chief District Judge.

THIS MATTER is before the Court on an initial review of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See Rule 4 Governing Section 2254 Cases.


Petitioner is presently a prisoner of the State of North Carolina following his conviction by a jury in the Buncombe County Superior Court on two counts of second-degree rape, one count each of first-degree kidnapping, possession of cocaine, possession of drug paraphernalia, habitual misdemeanor assault, and for being a habitual felon. The jury returned their verdict on August 3, 2003, and Petitioner was sentenced that same day to a total term of 665 to 845 months' imprisonment. Petitioner appealed.

On October 4, 2005, the North Carolina Court of Appeals issued a published opinion finding no prejudicial error affecting his convictions but his case was remanded to the trial court because one of the rape convictions was erroneously relied upon to elevate his sentence. State v. Moore , 620 S.E.2d 1 ( N.C. Ct. App. 2005). On October 31, 2005, Petitioner was resentenced on the kidnapping count to a term of 133 to 160 months and he was remanded to the custody of the North Carolina Department of Corrections. Petitioner did not file a direct appeal.

On November 8, 2005, Petitioner filed a pro se motion for appropriate relief (MAR) in Buncombe County Superior Court. (1:06-cv-255, Doc. NO. 13-3: MAR). Among other claims, Petitioner argued that his trial counsel labored under a conflict of interest, but the superior court summarily denied the MAR after concluding that Petitioner had presented no meritorious grounds for relief. ( Id., Doc. No. 13-4: Order). Next, on May 8, 2006, Petitioner filed a "Petition for; Motion of Appropriate Relief/Certiorari" in the Supreme Court of North Carolina which was dismissed on June 29, 2006. State v. Moore, No. 253P06 ( N.C. June 29, 2006). On July 24, 2006, Petitioner filed a "Petition of Habeas Corpus in Motion to Resubmit Petition of Motion for Appropriate Relief/Certiorari" which was denied by the Supreme Court on July 26, 2006. State v. Moore, No. 253P06-2 ( N.C. July 26, 2006). ( Id., Doc. No. 12-2).

On August 22, 2006, Petitioner continued his pursuit of collateral relief by filing his first § 2254 petition in this district. See (1:06-cv-255-GCM). The Court ordered the State to respond and a motion for summary judgment was soon filed wherein the State contended first that Petitioner had failed to exhaust his administrative remedies pursuant to 28 U.S.C. § 2254(b)(1)(A). In the alternative, the State contended that all of the claims were without merit and should be summarily dismissed.

Specifically, as to exhaustion the State argued that Petitioner had failed to follow the North Carolina statutory procedures governing collateral proceedings. Namely, Petitioner never filed a petition for a writ of certiorari with the North Carolina Court of Appeals from the superior court's denial of his MAR. Instead, Petitioner erroneously filed his certiorari petition in the Supreme Court. ( Id., Doc. No. 12 at 4). The Court noted that the Supreme Court of the United States holds that the provisions of § 2254 require "state prisoners to give state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." ( Id., Doc. 19: Order) (citing O'Sullivan v. Boerckel , 526 U.S. 838 (1999)). As the Court noted, a full opportunity to address these issues includes filing a petition for discretionary review when that procedure is a part of the standard procedure. ( Id., at 3) (citing N.C. Gen. Stat. § 7A-31; N.C. Gen. Stat. § 15A-1422).[1]

In its Order of dismissal, the Court found that in Petitioner's case, as he was challenging the denial of his MAR, the proper procedure was to file a petition for a writ of certiorari with the North Carolina Court of Appeals. Accordingly, because Petitioner could offer no evidence that he had properly exhausted his state administrative remedies in this fashion the Court dismissed the § 2254 without prejudice and Petitioner appealed. On July 11, 2007, the Fourth Circuit dismissed his appeal. Moore v. Harkleroad, 234 F.Appx. 123 (4th Cir. 2007) (unpublished).

On December 6, 2013, Petitioner filed a second § 2254 petition, this time in the Eastern District of North Carolina. Moore v. Harkleroad, No. 5:13-HC-2256-D. On January 14, 2014, the district court transferred the petition to this district on the ground that Petitioner was convicted within the Western District. (1:14-cv-00009-FDW, Doc. No. 6). In his initial filing Petitioner presented a one-page handwritten "Motion for Review of Habeas Corpus Petition." In this letter, Petitioner contends that his 2006 habeas petition was not addressed in an honest manner in the Western District. In support of this assertion, Petitioner contends that he received a letter from the Supreme Court of North Carolina indicating that his MAR/Certiorari petition was sent by the Supreme Court to the court of appeals by email. Yet, Petitioner offers no evidence of this, other than his claim, nor does he include a disposition from the court of appeals. (Doc. No. 1). The court in the Eastern District noted the deficiency in the filing of a hand written habeas petition and Petitioner was presented with standard forms on which to prepare his § 2254 petition. (Doc. No. 2). Petitioner then submitted the standard form under penalty of perjury. In this § 2254 petition, when asked to recount the procedural history of his State proceedings, and the claims he wished to present in this proceeding, Petitioner only repeatedly refers to his § 2254 petition in Civil Case No. 1:06-cv-255-GCM; yet he again offers no credible evidence that he has obtained a ruling from the court of appeals on a petition for a writ of certiorari.

For the reasons that follow, the Court finds that Petitioner's second § 2254 petition should be dismissed as untimely.


The AEDPA provides in relevant part:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...

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