United States District Court, W.D. North Carolina, Statesville Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER comes before the Court on initial review of pro se Petitioner Manley Franklin Wagoner'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 denied, and the petition will be dismissed as untimely.
Pro se Petitioner is a North Carolina state court inmate currently incarcerated at Harnett Correctional Institution in Lillington, North Carolina. On August 2, 1995, Petitioner pled guilty in Wilkes County Superior Court to first-degree sexual offense and aiding and abetting first-degree rape. Petitioner was sentenced to life imprisonment for the first-degree sexual offense, and to a consecutive term of 240 to 297 months of imprisonment for the offense of aiding and abetting first-degree rape. Petitioner did not appeal.
Petitioner filed a motion for appropriate relief ("MAR") in Wilkes County Superior Court on November 18, 2013, which motion was denied on November 25, 2013. See (Doc No 1-1 at 10). On December 12, 2013, Petitioner filed a motion for reconsideration of the denial of the MAR, which motion was denied on December 16, 2013. See (Id.). Petitioner then filed a petition for writ of certiorari in the North Carolina Court of Appeals on March 28, 2014, which petition was denied on April 17, 2014. (Id. at 1).
Petitioner placed the instant petition in the prison system for mailing on June 4, 2014, and it was stamp-filed in this Court on June 6, 2014. In the habeas petition, Petitioner contends that his due process rights were violated because his guilty plea was involuntary and unknowing; his sentence was grossly disproportionate and not graduated to the offense; he received ineffective assistance of counsel based on trial counsel's failure to investigate the elements of the crime and to object to the aggravated and consecutive sentences; and his constitutional right to equal protection was violated because he was denied retroactivity of North Carolina's new sentencing laws.
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 26, 2014, Petitioner had $8.77 in his inmate trust account. See (Doc. No. 3 at 2). Based on these figures, the Court finds that Petitioner has sufficient assets with which to pay the $5.00 filing fee. Accordingly, the Court will deny 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.
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 ...