United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This habeas corpus matter arising under 28 U.S.C. § 2254 comes before the court on respondent's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (DE 8). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants respondent's motion.
STATEMENT OF CASE
On April 25, 2006, petitioner, in the Cumberland County Superior Court, was charged by indictment with one count of conspiracy to traffic in four hundred (400) grams or more of cocaine in violation of N.C. Gen. Stat. §§ 90-95(i), 90-95(h)(3)(c), and 90-98. (Resp't's Mem. Ex. A.) On October 2, 2006, petitioner and the state of North Carolina entered into a memorandum of agreement ("MOA") in which petitioner agreed to plead guilty to the charged offense, and in exchange the state agreed to continue petitioner's criminal judgment from session to session to allow petitioner the opportunity to provide assistance to law enforcement. (Id. Ex. C.) The MOA further provided that upon petitioner's substantial assistance and cooperation, the state agreed to "make known to the Court all of [petitioner's] effort in providing assistance to the State and the United States of America, " and not to use any of petitioner's statements regarding drug trafficking against him. (Id.)
On October 2, 2006, in accordance with the MOA, petitioner pleaded guilty to the offense charged in his indictment. (Id. Ex. D.) In accordance with the MOA, the "prayer for judgment [was] continued day to day and session to session until the State pray[ed] judgment." (Id. Ex. E.) Then, on December 6, 2007, the trial court entered judgment and sentenced petitioner to a term of one hundred seventy-five (175) to two hundred nineteen (219) months imprisonment. (Id. Ex. F.) Petitioner also was assessed a two hundred fifty thousand dollar ($250, 000.00) fine. (Id.) Petitioner did not file a notice of appeal.
On April 29, 2010, petitioner filed a pro se motion for appropriate relief ("MAR") in the Cumberland County Superior Court. (Id. Exs. G, H.) The superior court denied petitioner's MAR on October 14, 2010. (Id. Ex. H.)
On November 12, 2010, petitioner filed a petition for a writ of certiorari with the North Carolina Court of Appeals seeking review of the superior court's denial of petitioner's MAR, which was denied on November 29, 2010. (Id. Exs. I, K.) On May 10, 2012, petitioner filed a pro se petition for discretionary review with the North Carolina Supreme Court, which was dismissed on June 13, 2012. (Id. Exs. L, M.)
On July 2, 2012, petitioner filed a petition for a writ of habeas corpus pursuant to N.C. Gen. Stat. § 17-1 and 17-4 in the Cumberland County Superior Court. (Pet. Attach., pp. 39-46.) The superior court denied petitioner's state habeas petition on the date it was filed. (Id. Attach., p. 47.)
On August 22, 2013, petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raised the following claims in his § 2254 petition: (1) he received ineffective assistance of counsel; (2) he was convicted based upon insufficient evidence; (3) his MOA was breached; and (4) he was denied due process. Respondent subsequently filed a motion for summary judgment arguing that petitioner's habeas petition should be dismissed because it was filed outside of the statute of limitations, and therefore is time-barred. The issues raised were fully briefed.
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(c); 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 ...