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Wilcox v. Corpening

United States District Court, W.D. North Carolina, Bryson City Division

May 28, 2014

TORREY F. WILCOX, Petitioner,
v.
HUBERT CORPENING, Respondent.

ORDER

FRANK D. WHITNEY, Chief District Judge.

THIS MATTER comes before the Court on initial review of pro se Petitioner Torrey Wilcox's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus, (Doc. No. 1), and on Petitioner's Motion to Proceed in Forma Pauperis, (Doc. No. 2). For the following reasons, Petitioner's Motion to Proceed in Forma Pauperis will be granted and the petition will be dismissed as untimely.

I. BACKGROUND

Petitioner is a North Carolina state court inmate currently incarcerated at Marion Correctional Institution in Marion, North Carolina. On or around May 15, 2006, Petitioner pled guilty in Macon County Superior Court to eight counts of sexual offense with a minor, pursuant to N.C. GEN. STAT. 14-27.7(a). Petitioner was sentenced to seven cumulative sentences of 22-36 months of imprisonment. Petitioner did not appeal.

Petitioner states that he filed a motion for appropriate relief ("MAR") in Macon County Superior Court on February 26, 2013, which motion was denied on September 27, 2013. Petitioner states that he then filed a petition for writ of certiorari in the North Carolina Court of Appeals, which petition was denied on December 18, 2013. Petitioner placed the petition in the prison system for mailing on May 12, 2014, and it was stamp-filed in this Court on May 14, 2014. Petitioner brings the following claims in the habeas petition: (1) he was subjected to double jeopardy, as "the use of a multiplicitous indictment, resulted in Petitioner receiving multiple punishments for the same offense" and (2) he received ineffective assistance of counsel based on counsel's failure to object to the indictment. (Doc. No. 1 at 5-7).

The Court first considers Petitioner's Motion to Proceed in Forma Pauperis. A petition for a writ of habeas corpus requires a filing fee of $5.00. A review of the pleadings reveals that as of May 21, 2014, Petitioner had $0.16 in his inmate trust account. See (Doc. No. 4 at 8). Based on these figures, the Court finds that Petitioner has insufficient assets with which to pay the filing fee. Accordingly, the Court will grant his motion to proceed in forma pauperis.

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 motion. Id . After reviewing the record in this case, the Court finds that no response from the government is necessary.

III. DISCUSSION

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 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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