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 an Answer (Docket Entry 5) and a Motion for Summary Judgment (Docket Entry 6). Petitioner was notified (Docket Entry 9) of his right to reply and warned of the potential consequences of failing to do so. Petitioner then filed a "Motion to Dismiss Petition for Writ of Habeas Corpus" (Docket Entry 10), which Respondent opposed by filing a Response (Docket Entry 11).
On September 15, 2008 Petitioner was convicted after a jury trial in Superior Court, Forsyth County of first-degree murder, robbery with a dangerous weapon, and two counts of larceny of a firearm, in cases 06 CRS 59076 and 59078-82. (Docket Entry 1, § 1-6.) He was sentenced to life imprisonment without parole. (Id. § 3.) The North Carolina Court of Appeals found no error in Petitioner's criminal judgment on March 16, 2010. State v. Clodfelter & Jessup, 203 N.C.App. 60, 691 S.E.2d 22 (March 16, 2010), review denied and appeal dismissed, 364 N.C. 437, 702 S.E.2d 496 (Oct. 7, 2010). Petitioner filed a petition for discretionary review, and a notice of appeal, in the Supreme Court of North Carolina, which were denied and dismissed, respectively, on October 7, 2010. (Id.) On October 10, 2011, Petitioner filed a motion for appropriate relief ("MAR") in Superior Court, Forsyth County, which was denied on July 17, 2012. (Docket Entry 8, Exs. 8-9.) On October 19, 2012, Petitioner filed a petition for writ of certiorari in the North Carolina Court of Appeals, seeking review of the denial of his MAR, and it was denied on November 1, 2012. ( Id., Exs. 11-12.) Petitioner filed a second MAR in Superior Court, Forsyth County on May 16, 2013, which was denied on June 4, 2013. ( Id., Exs. 13-14.) The instant Petition was signed and dated as of July 12, 2013 and filed on July 23, 2013. (Docket Entry 1.)
Petitioner raises four claims, all of which allege violations of his Fourteenth Amendment right of due process, because: (1) the trial court partially redacted a statement without a limiting instruction, (2) the trial court allowed an insufficiently redacted statement of a co-defendant to be used at a joint trial, (3) the trial judge failed to disqualify himself due to personal and families ties, and (4) the prosecutor failed to prove beyond a reasonable doubt each element of first-degree murder and the trial court failed to instruct the jury on the elements of the offense. (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) and argues, in the alternative, that Petitioner's claims lack merit. (Docket Entry 8 at 5-12.) In order to assess Respondent's 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 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 ...