United States District Court, M.D. North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOE L. WEBSTER, 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.) Respondent has filed a Motion to Dismiss on Statute of Limitations Grounds pocket Entry 5) and Initial Answer (Docket Entry 4). Petitioner was notified (Docket Entry 7) of his right to reply to the Respondent's Motion to Dismiss (Docket Entry 5) but no reply was forthcoming.
On December 5, 2007 Petitioner pled guilty in Superior Court, Guilford County to trafficking by transporting 400 grams or more of cocaine, trafficking by possessing 400 grams or more of cocaine, and conspiracy to traffic 400 grams or more of cocaine, in cases 07 CRS 80032-33 and 40. (Docket Entry 1, §§ 1-6, Docket Entry 6, Exs. 1-2.) He was sentenced to 775-219 months imprisonment. (Docket Entry 1, § 3; Docket Entry 6, Ex. 2.) Petitioner did not file a direct appeal. On November 7, 2011, Petitioner filed a Motion for Appropriate Relief ("MAR") in Superior Court, Guilford County, which was denied on January 12, 2012. (Docket Entry 6, Exs. 3-4.) Petitioner then filed a petition for a writ of certiorari with the North Carolina Court of Appeals on April 12, 2012 and it was denied on April 18, 2012. (Docket Entry 6, Exs. 5 and 7.) Next, Petitioner filed a notice of appeal, petition for a writ of certiorari, and motion to appoint counsel in the Supreme Court of North Carolina on April 24, 2013, which were all dismissed on August 27, 2013. (Docket Entry 6, Exs. 8-9.) Petitioner signed his Petition on October 16, 2013 and it was file stamped by the Clerk of Court on October 24, 2013. (Docket Entry 1.)
In Petitioner's own words, he claims: (1) "the state lacked probable cause for the initial stop and substantial evidence for the conviction, which prejudiced the Petitioner's due process right to redress the allegations within the officer's reports that contradicted one another, based on the facts on the evidence, " and Q) "the state lacked probable cause for the initial stop that garnered the conviction illegally based on the facts of the evidence presented within the arresting officer's reports which were contradictory." ( Id. § 12.)
Respondent requests dismissal on the ground that the Petition was filed beyond the one-year limitation period imposed by 28 U.S.C. § 2244(d)(1). (Docket Entry 5.) In order to assess this 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 ran 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 the exercise of due diligence.
Green v. Johnson,
515 F.3d 290, 303-04 (4th Cir.2008) (emphasis added). The record does not reveal any basis for concluding that subparagraph ...