United States District Court, W.D. North Carolina, Asheville Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER comes before the Court on Petitioner's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus, (Doc. No. 1), and on Respondent's Motion to Dismiss, (Doc. No. 6). For the following reasons, Respondent's motion to dismiss will be granted, and the petition will be dismissed as untimely.
Petitioner is a prisoner of the State of North Carolina, who, on December 12, 2006, in Burke County Superior Court, pled guilty to felony larceny having achieved habitual felon status, and was sentenced to 96-125 months imprisonment, in case 06 CRS 4566. (Doc. Nos. 7-2; 7-3). Petitioner was represented by Douglass L. Hall and did not appeal. On July 21, 2009, Petitioner filed a pro se motion for appropriate relief ("MAR") in Burke County Superior Court. (Doc. No. 7-4). By order dated July 28, 2009, the MAR Court filed an order appointing post-conviction counsel, Rachel LeClair. (Doc. No. 7-5). On or about October 26, 2009, the MAR Court conducted a post-conviction MAR evidentiary hearing, and on November 13, 2009, issued a detailed order denying the MAR. (Doc. No. 7-6). On around October 30, 2009, Petitioner wrote a pro se letter to Daniel Shar, with the North Carolina Appellate Defender's Office. (Doc. No. 7-7). On December 11, 2009, the Appellate Defender, Staples Hughes, wrote a letter to the Burke County Superior Court on Petitioner's behalf. (Doc. No. 7-8). On December 16, 2007, the court construed the letter as a motion for reconsideration and denied relief. (Doc. No. 7-9). On January 28, 2011, Petitioner filed a certiorari petition, through counsel Mary Cook, in the North Carolina Court of Appeals, seeking review of the Burke County Superior Court's order denying Petitioner's MAR. (Doc. No. 7-10). On February 15, 2011, the state filed a response. (Doc. No. 7-11). On February 18, 2011, certiorari was denied. (Doc. No. 7-12). On July 29, 2011, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals, again seeking review of the MAR order. (Doc. No. 7-13). On August 15, 2011, the state filed a response. (Doc. No. 7-14). On August 18, 2011, certiorari was denied. (Doc. No. 7-15).
On July 25, 2012, Petitioner filed a second, pro se MAR in Burke County Superior Court. (Doc. No. 7-16). On August 3, 2012, the second MAR was summarily denied. (Doc. No. 7-17). On August 6, 2012, Petitioner filed a pro se motion to alter or amend judgment and sentence, which motion was denied on August 13, 2012. (Doc. Nos. 7-18; 7-19). On September 6, 2012, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals. (Doc. No. 7-20). On September 20, 2012, the state filed a response. (Doc. No. 7-21). On September 24, 2012, certiorari was denied. (Doc. No. 7-22). On October 21, 2013, Petitioner filed a third, pro se MAR in Burke County Superior Court, which motion was denied the same day. (Doc. Nos. 7-23; 7-24). On November 1, 2013, Petitioner filed another pro se certiorari petition in the North Carolina Court of Appeals. (Doc. No. 7-25). On November 7, 2013, the state filed a response. (Doc. No. 7-26). On November 12, 2013, certiorari was denied. (Doc. No. 7-27). On December 4, 2013, Petitioner filed a pro se certiorari petition in the North Carolina Supreme Court, which petition was dismissed on January 23, 2014, by order witnessed February 4, 2014. (Doc. No. 1 at 40).
Petitioner placed his pro se federal habeas application in the prison system for mailing on April 1, 2014, and it was stamp-filed in this Court on April 10, 2014. Petitioner contends that: (1) he received ineffective assistance of counsel during his guilty plea proceeding because counsel failed to investigate the value of the stolen lawn mower and advised him to accept the plea or he would receive a 522-month sentence; (2) he received ineffective assistance of post-conviction counsel during his October 26, 2009, evidentiary hearing; (3) the state post-conviction court improperly failed to grant his August 30, 2012, motion for reconsideration; and (4) his felony conviction and sentence were obtained through perjury and false testimony knowingly allowed by the prosecution.
On May 16, 2014, Respondent filed the pending motion to dismiss. (Doc. No. 6). On May 20, 2014, this Court entered an Order pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), granting Petitioner fourteen days to respond to the motion to dismiss. (Doc. No. 8). On May 22, 2014, Petitioner filed a response to the motion to dismiss. (Doc. No. 12).
II. STANDARD OF REVIEW
The Court is guided by Rule 4 of the Rules Governing Section 2254 Cases, which directs habeas courts to examine habeas petitions promptly. Rule 4, 28 U.S.C.A. foll. § 2254. When it plainly appears from any such petition and any attached exhibits that the petitioner is not entitled to relief, the reviewing court must dismiss the petition. Id.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court must be filed within one year of the latest of:
(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 ...