United States District Court, W.D. North Carolina, Asheville Division
ROBERT J. CONRAD, Jr., District Judge.
THIS MATTER comes before the Court on Petitioner Alden Roland's federal habeas petition brought under 28 U.S.C. § 2254, (Doc. No. 1), and on Respondent's Motion to Dismiss, (Doc. No. 7). For the following reasons, the petition will be dismissed as untimely.
Petitioner Alden Roland, a prisoner of the State of North Carolina, was convicted after a jury trial on October 3, 2005, in Buncombe County Superior Court, of first-degree sexual offense, first-degree burglary, felony larceny, first-degree rape, and of being a habitual felon. (Doc. No. 8-3 at 3). Petitioner was sentenced to two consecutive terms of 433-529 months for the first-degree rape and first-degree sexual offense, and to two consecutive terms of 133-169 months for the first-degree burglary and felony larceny. (Id.). Petitioner appealed, and the North Carolina Court of Appeals affirmed Petitioner's conviction in an unpublished opinion dated May 15, 2007. State v. Roland , 183 N.C.App. 300, 644 S.E.2d 269 (2007).
Petitioner filed a pro se motion for appropriate relief ("MAR") in Buncombe County Superior Court on June 19, 2012, and the MAR was summarily denied on July 24, 2012. (Doc. Nos. 8-7; 8-8). Petitioner filed a petition for writ of certiorari with the North Carolina Court of Appeals on August 23, 2012, which petition was denied on September 11, 2012. (Doc. Nos. 8-9; 8-11).
Petitioner placed the instant § 2254 petition in the prison mail system on November 21, 2012, and the petition was stamp-filed on December 4, 2012. Petitioner alleges the following grounds for relief in the petition: (1) Petitioner was sentenced under a statute that is facially unconstitutional due to its ungraduated form of punishment in violation of the Eighth and Fourteenth Amendments; and, (2) alternatively, the application of the statutory punishment creates a sentence that is grossly disproportionate to Petitioner's crimes in violation of the Eighth and Fourteenth Amendments. (Doc. No. 1 at 5; 7). Specifically, in support of his two, overlapping grounds for relief, Petitioner contends that he was originally sentenced to consecutive sentences of 433-529 months for first-degree rape, 433-529 months for first-degree sexual offense, 133-169 months for first-degree burglary, and 133-169 months for felonious larceny, totaling a minimum of 1132 months and maximum term of 1396 months. (Doc. No. 1 at 19). Petitioner states that he became aware, while serving his sentence, that the North Carolina Department of Public Safety was "treating and enforcing his terms of imprisonment as a single' minimum term of 1132 months and a maximum term of 1369 months" under a state statute that Petitioner contends is unconstitutional. (Id. at 20). Petitioner contends that the state's intent to treat his terms of imprisonment as a single term violates Petitioner's Eighth and Fourteenth Amendment rights in that the single sentence "creates a term of imprisonment grossly disproportionate to Petitioner's offenses." (Id. at 21). On October 25, 2013, Respondent filed the pending motion to dismiss.
II. STANDARD OF REVIEW
The Court is guided by Rule 4 of the Rules Governing Section 2254 Cases, which directs habeas courts to examine habeas petitions promptly. Rule 4, 28 U.S.C.A. foll. § 2254. When it plainly appears from any such petition and any attached exhibits that the petitioner is not entitled to relief, the reviewing court must dismiss the motion. Id . After examining the record in this matter, the Court finds that the argument presented by the Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States , 423 F.2d 526, 529 (4th Cir. 1970).
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court must be filed within one year of the latest of:
(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
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...