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McNeair v. Perritt

United States District Court, M.D. North Carolina

March 27, 2014

BRAD PERRITT, Respondent.


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.) A jury in the Superior Court of Davidson County found Petitioner guilty of first degree kidnapping, first degree burglary, violation of a domestic protective order, and resisting a public officer, whereafter he pled no contest to attaining habitual felon status, in cases 03 CRS 8923, 8924, 54085, 54087, and 54089. (Docket Entry 6, Ex. 5 at 39-40; see also Docket Entry 2, ¶¶ 1, 2, 4-6.)[1] On April 1, 2004, the trial court consolidated the convictions into one Class C felony and sentenced Petitioner in the presumptive sentencing range for his prior record level to 150 to 189 months of imprisonment. (Docket Entry 6, Ex. 5 at 23; see also Docket Entry 2, ¶ 3.) Petitioner filed a direct appeal (see Docket Entry 2, ¶¶ 8, 9(a)-(f)) and, on August 16, 2005, the North Carolina Court of Appeals found no error, State v. McNeair, No. COA04-1358, 172 N.C. App. 593 (table), 616 S.E.2d 692 (table), 2005 WL 1950265 (Aug. 16, 2005) (unpublished). On January 26, 2006, the North Carolina Supreme Court denied Petitioner's request for discretionary review in State v. McNeair, ___ N.C. ___ , 629 S.E.2d 279 (2006). (See Docket Entry 2, ¶¶ 9(g), 11(a).)[2]

Petitioner thereafter filed a pro se motion for appropriate relief ("MAR") with the state trial court, which he dated as signed on March 11, 2009 (Docket Entry 6, Ex. 3 at 11), and which the trial court accepted as filed on March 25, 2009 (Docket Entry 6, Ex. 4 at 1 (indicating date filed)). The trial court summarily denied the MAR by order dated March 30, 2009, and filed April 1, 2009. (Docket Entry 6, Ex. 4.) Petitioner then filed a pro se certiorari petition with the North Carolina Court of Appeals (Docket Entry 6, Ex. 5; see also Docket Entry 2 at 7), which he dated as submitted on December 13, 2012 (Docket Entry 6, Ex. 5 at 11), and which that court stamped as filed on December 27, 2012 (id. at 2). The Court of Appeals denied that petition on January 14, 2013. (Docket Entry 6, Ex. 7.)

Petitioner thereafter submitted his instant Petition to this Court (Docket Entry 2), which he dated as mailed on March 23, 2013 (Docket Entry 2 at 15), and which the Court stamped as filed on March 26, 2013 (Docket Entry 2 at 1).[3] Respondent moved to dismiss the Petition on statute of limitation grounds (Docket Entry 5), but Petitioner has not responded despite notice from the Clerk of Court pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) (see Docket Entry 7; Docket Entries dated Apr. 25, 2013, to present). For the reasons that follow, the Court should grant Respondent's instant Motion.

Petitioner's Claims

Petitioner raises four claims for relief in his Petition: (1) he received "a sentence of 15 months higher than the statutory minimum and 21 months above the statutory maximum of the presumptive range" without his consent and without the jury finding any aggravating factors (Docket Entry 2 at 5); (2) "[t]he trial court imposed an aggravated sentence outside the scope of the jury's verdict" because "Petitioner did not commit any act with deliberate cruelty" (id. at 7); (3) the trial court relied on an aggravating factor based on prior convictions that the jury did not find and to which Petitioner did not admit (see id. at 8); and (4) the trial court exceeded its "proper authority" by finding an aggravating factor due to Petitioner being on pre-trial release at the time of the offenses at issue without the jury having "found all the facts which the law makes essential to the punishment" (id. at 10).


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 ...

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