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McCormick v. Hall

United States District Court, M.D. North Carolina

March 27, 2014

MATTHEW EDWARD MCCORMICK, Petitioner,
v.
LAFAYETTE HALL, Respondent.

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 1.) On January 25, 2006, Petitioner pled guilty in the Superior Court of Guilford County to two counts of trafficking in heroin and one count of conspiracy to traffic in heroin in cases 05 CRS 68753 through 68755. (Docket Entry 5, Ex. 1; see also Docket Entry 1, ¶¶ 1, 2, 4-6.) The trial court consolidated the two trafficking counts and sentenced Petitioner to two consecutive terms of 90 to 117 months' imprisonment. (Docket Entry 5, Ex. 2; see also Docket Entry 1, ¶ 3.) Petitioner did not pursue a direct appeal. (See Docket Entry 1, ¶¶ 8, 9(a)-(f).)

Petitioner did file, with the assistance of counsel, a motion for appropriate relief ("MAR") with the state trial court (Docket Entry 5, Ex. 3; see also Docket Entry 1, ¶ 11(a)), which his counsel dated as signed on January 17, 2007 (Docket Entry 5, Ex. 3 at 5), [1] and which the trial court accepted as filed on January 22, 2007 (Docket Entry 5, Ex. 3 at 2; see also Docket Entry 1, ¶ 11(a)(3)). The trial court held an evidentiary hearing on December 15, 2008 (Docket Entry 5, Ex. 4; see also Docket Entry 1, ¶ 11(a)(6)), [2] but denied the MAR by order dated and filed December 23, 2008 (Docket Entry 5, Ex. 5; see also Docket Entry 1, ¶ 11(a)(7), (8)). Petitioner sought review of that denial by filing a certiorari petition, through counsel, in the North Carolina Court of Appeals (Docket Entry 5, Ex. 6; see also Docket Entry 1 at 5-6), [3] which his counsel signed as submitted on March 8, 2009 (Docket Entry 5, Ex. 6 at 8), [4] and which that court accepted as filed on April 8, 2009 (id. at 2). The Court of Appeals denied that petition on April 27, 2009. (Docket Entry 5, Ex. 8; see also Docket Entry 1 at 6.)

Subsequently, Petitioner filed a pro se habeas corpus petition with the state trial court (Docket Entry 5, Ex. 9), which he dated as signed on March 3, 2010 (id. at 16), and which the trial court accepted as filed on May 27, 2010 (id. at 2). The trial court summarily denied that petition by order dated and filed August 10, 2010. (Docket Entry 5, Ex. 10.)

Thereafter, Petitioner filed pro se a second MAR with the state trial court (Docket Entry 5, Ex. 11; see also Docket Entry 1 at 6), which he dated as signed on September 26, 2012 (Docket Entry 5, Ex. 11 at 9), and which that court accepted as filed on October 3, 2012 (id. at 2; see also Docket Entry 1 at 6). The trial court summarily denied that motion on October 19, 2012. (Docket Entry 5, Ex. 12; see also Docket Entry 1 at 6.) Petitioner sought review of that MAR's denial by filing a petition for certiorari with the North Carolina Court of Appeals (Docket Entry 5, Ex. 13; see also Docket Entry 1 at 6), which he dated as submitted on December 21, 2012 (Docket Entry 5, Ex. 13 at 9), and which that court accepted as filed on January 10, 2013 (id. at 2). On January 29, 2013, the Court of Appeals denied that petition. (Docket Entry 5, Ex. 15.) Petitioner then filed a pro se certiorari petition with the North Carolina Supreme Court (Docket Entry 5, Ex. 16; see also Docket Entry 1 at 6), which he dated as submitted on February 7, 2013 (Docket Entry 5, Ex. 16 at 6-7), [5] and which that court accepted as filed on February 11, 2013; (id. at 2). On April 11, 2013, that court dismissed said petition. (Docket Entry 1 at 6, 16.)

Petitioner thereafter submitted his instant Petition to this Court (Docket Entry 1), which he dated as mailed on June 17, 2013 (id. at 14), and which the Court stamped as filed on June 26, 2013 (id. at 1).[6] Respondent then moved to dismiss the Petition on statute of limitation grounds. (Docket Entry 4.) Petitioner responded in opposition. (Docket Entries 9, 10.) For the reasons that follow, the Court should grant Respondent's instant Motion.

Petitioner's Claims

Petitioner purports to raise two claims for relief in his Petition. First, he alleges that he received ineffective assistance of counsel in that his trial counsel failed "to file a notice of appeal from the denial of [Petitioner's] pre-trial Motion to Suppress.'" (Docket Entry 1 at 5.) Second, he claims that "[d]efense counsel failed to file a notice of appeal to review the trial court's denial of Petitioner's Motion to Suppress." (Id. at 6.) Phrased as such, Petitioner's second ground for relief thus appears to effectively restate the claim in his first ground for relief.

Discussion

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 ...

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