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Allen v. Dail

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

March 20, 2014

BRANDON LEE ALLEN, Petitioner,
v.
LARRY DAIL, Respondent.

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 respondent's motion for summary judgment (DE 5) pursuant to Federal Rule of Civil Procedure 56. The issues raised were fully briefed and are ripe for adjudication. For the following reasons, the court grants respondent's motion for summary judgment.

STATEMENT OF CASE

On March 19, 2009, petitioner was found guilty after a jury trial in the Beaufort County Superior Court of first-degree sexual offense against a child and indecent liberties with a child. Resp't's Mem. Ex. 1, pp. 19-20. The jury additionally found that petitioner was not guilty of two counts of charged first-degree rape of a child. Id . Petitioner was sentenced to the following consecutive sentences: (1) two hundred forty (240) to two hundred ninety-seven (297) months imprisonment for the offense of first-degree sexual offense against a child; and (2) sixteen (16) to twenty (20) months for the offense of indecent liberties with a child. Id . pp. 23-25. The North Carolina Court of Appeals found no error in petitioner's conviction and sentence on March 16, 2010. State v. Allen, No. COA09-1259 , 2010 WL 915975 *6 ( N.C. Ct. App., March 16, 2010) (unpublished). On April 20, 2010, petitioner, through counsel, filed a petition for discretionary review to the North Carolina Supreme Court, which was denied on October 7, 2010. State v. Allen, 364 N.C. 435, 435 (2010).

On October 4, 2011, petitioner, through counsel, filed a motion for appropriate relief ("MAR") in the Beaufort County Superior Court. Resp't's Mem. Ex. 10. On September 20, 2012, the superior court judge denied petitioner's MAR. Id . Ex. 13. On February 15, 2013, petitioner filed a pro se petition for a writ of certiorari in the North Carolina Court of Appeals. Id . Ex. 14. On February 25, 2013, the State filed a response arguing, inter alia, that petitioner's certiorari petition should be dismissed for "fail[ure] to include with his petition a copy of the purported order he [wa]s requesting review of, any motion that was addressed by the trial court, copies of any judgments[, ] or any documents to support his petition." Id . Ex. 15, p. 6. On February 28, 2013, the court of appeals dismissed petitioner's certiorari petition. Id . Ex. 16.

On March 12, 2013, 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) the court of appeals erred in affirming the trial court's denial of petitioner's motion to dismiss the charge of first-degree sexual offense due to insufficient evidence; (2) the court of appeals erred in affirming the trial court's denial of petitioner's motion to dismiss because there was insufficient evidence of penetration to support the charge of first-degree sexual offense; (3) the court of appeals erred in failing to arrest judgment on the conviction for indecent liberties because the first-degree sexual offense conviction arose out of the same act; and (4) the court of appeals erred in affirming the trial court's denial of petitioner's motion to dismiss because the State failed to satisfy the corpus delicti rule, which requires strong, independent corroboration of essential facts and circumstances contained in confession to obtain the conviction. On August 5, 2013, respondent filed a motion for summary judgment, arguing that petitioner's action is time-barred. Alternatively, respondent argues that petitioner's claims are without merit. The motion was fully briefed.

DISCUSSION

A. Motion for Summary Judgment

1. Standard of Review

Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby , 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson , 477 U.S. at 250.

2. Analysis

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a writ of habeas corpus by a person in custody pursuant to the judgment of a state court must be filed within one year. 28 U.S.C. § 2244(d)(1). The period begins to run from the latest of several 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... is removed; C) the date on which the constitutional right 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 ...

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