United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, 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 2.) On April 6, 1995, a jury in the Superior Court of Guilford County found Petitioner guilty of first and second degree kidnapping and robbery with a dangerous weapon in cases 93 CRS 75130, 75131 and 75134. (Docket Entry 6, Ex. 4 at 10-11, 26-27; see also Docket Entry 2, ¶¶ 1, 2, 4-6.) The trial court sentenced Petitioner to two consecutive terms of 40 years' imprisonment. (Docket Entry 6, Ex. 4 at 10-11, 26-27; see also Docket Entry 2, ¶ 3.) Petitioner filed a direct appeal (see Docket Entry 2, ¶¶ 8, 9(a) - (f)) and, on June 18, 1996, the North Carolina Court of Appeals found no error, State v. Warren , 122 N.C. App. 738, 471 S.E.2d 667 (1996).
Petitioner thereafter filed a pro se motion for appropriate relief ("MAR") with the state trial court, which he dated as signed on November 22, 2005 (Docket Entry 6, Ex. 2 at 8; see also Docket Entry 2 at 6-7),  and which the trial court accepted as filed on February 2, 2006 (Docket Entry 6, Ex. 2 at 2). The trial court summarily denied the MAR by order dated and filed September 7, 2006. (Docket Entry 6, Ex. 3; see also Docket Entry 2 at 7.)
Subsequently, Petitioner filed a second pro se MAR with the state trial court (Docket Entry 6, Ex. 4), which he dated as signed on August 5, 2009 (id. at 28), and which the trial court accepted as filed on August 14, 2009 (id. at 2). The trial court summarily denied that motion by order dated and filed September 18, 2009. (Docket Entry 6, Ex. 5.) Thereafter, Petitioner filed a pro se petition for certiorari with the North Carolina Court of Appeals (Docket Entry 6, Ex. 6), which he dated as submitted on October 30, 2009 (id. at 10), and which that court accepted as filed on December 3, 2009 (id. at 2). On December 10, 2009, the Court of Appeals denied that petition. (Docket Entry 6, Ex. 8.) Petitioner filed a second pro se certiorari petition with the Court of Appeals (Docket Entry 6, Ex. 9), which he dated as submitted on September 5, 2012 (id. at 6), and which that court accepted as filed on September 10, 2012 (id. at 2). On September 17, 2012, the Court of Appeals denied the second certiorari petition. (Docket Entry 6, Ex. 11.)
Petitioner thereafter submitted his instant Petition to this Court (Docket Entry 2), which he dated as mailed on January 22, 2013 (Docket Entry 2 at 14), and which the Court stamped as filed on January 29, 2013 (Docket Entry 2 at 1). Respondent then moved to dismiss the Petition on statute of limitation grounds. (Docket Entry 5.) Petitioner responded in opposition. (Docket Entry 8.) For the reasons that follow, the Court should grant Respondent's instant Motion.
Petitioner raises two claims for relief in his Petition. First, he alleges that the state trial court imposed an "unauthorized" sentence for his first degree kidnapping conviction. (See Docket Entry 2 at 5.) Second, he claims entitlement to an "extremely more lenient" sentence for his kidnapping convictions under the North Carolina Structured Sentencing Act. (See id. at 6-7.)
In order to assess Respondent's statute of limitation 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 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 ...