United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter came before the court on respondent's motion for summary judgment (DE 5) pursuant to Federal Rule of Civil Procedure 56, regarding petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The issues raised were fully briefed and are ripe for adjudication. For the following reasons, the court grants respondent's motion.
STATEMENT OF CASE
On October 7, 2004, petitioner was found guilty after a jury trial in the Carteret County Superior Court of first-degree sexual offense against a child and felonious restraint. State v. Mahoney , 176 N.C. App. 409, 626 S.E.2d 875 (2006). Petitioner was sentenced to a minimum of three hundred thirty-six (336) months and a maximum of four hundred thirteen (413) months imprisonment. Id . The North Carolina Court of Appeals found no error in petitioner's conviction and sentence on March 7, 2006. Id.
On September 22, 2010, petitioner filed a pro se motion captioned "Memorandum and Motion to Dismiss for Lack of Subject Matter Jurisdiction" in the superior court. (Resp't's Mem. Ex. 6.) On August 24, 2011, petitioner filed a motion captioned "Judicial Notice Pursuant to 28 CFR Ch. 1.53228 For Deposit Opt. Forms 90, 91 & SF 24, 25, 25A, 28." (Id. Ex. 7.) On July 11, 2011, the superior court entered an order construing petitioner's filings as motions for appropriate relief. (Mem. in Supp. of Pet., attach. pp. 4-5.) The superior court summarily denied petitioner's MARs on September 14, 2011. (Id.)
On March 9, 2012,  petitioner filed a third pro se MAR, which was summarily denied on August 12, 2012. (Id. p. 14.) On January 28, 2013,  petitioner filed a pro se petition for a writ of certiorari in the North Carolina Court of Appeals. (Id. p. 60.) The court of appeals dismissed petitioner's certiorari petition on March 4, 2013. (Id. p. 22.)
On August 21, 2013, petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, petitioner alleges that the superior court judge violated his rights pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution when the judge denied petitioner's right to be heard an all meritorious issues presented in petitioner's post-conviction proceedings. Petitioner contends that the superior court judge also denied him "all resources to present [his post-conviction] issues as mandated by this state's statutes." (Pet. p. 6.)
On January 28, 2014, respondent filed a motion for summary judgment, arguing that petitioner's action is time-barred. Alternatively, respondent argues that petitioner's claims are without merit. The motion was fully briefed. Petitioner subsequently filed a motion to supplement his petition and a motion to appoint counsel. The court granted petitioner's motion to supplement, but denied his motion to appoint counsel.
A. Motion for Summary Judgment
1. Standard of Review
Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby , 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson , 477 U.S. at 250.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a writ of habeas corpus by a person in custody pursuant to the judgment of a state court must be filed within one year. 28 U.S.C. § 2244(d)(1). ...