United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 2.) On August 17, 2007, in the Superior Court of Davidson County, a jury found Petitioner guilty of second-degree rape, second-degree sex offense, habitual misdemeanor assault, assault on a female, and breaking and entering, in cases 05 CRS 61448-49, 51 and 07 CRS 5067, and Petitioner received a sentence of 133 to 169 months of imprisonment. ( Id., ¶¶ 1-6.) Petitioner (through appointed counsel) appealed his convictions to the North Carolina Court of Appeals (id., ¶ 9) and that court unanimously denied his appeal, State v. Rogers, 194 N.C.App. 131, 669 S.E.2d 77 (2008). Petitioner then filed a petition for discretionary review ("PDR") with the North Carolina Supreme Court (Docket Entry 2, ¶ 9(g)), which that court denied on March 19, 2009 (id., ¶ 9(g)(3); Docket Entry 11-3). Petitioner did not thereafter file a petition for certiorari in the United States Supreme Court. (Docket Entry 2, ¶ 9(h).)
After his direct appeal, Petitioner filed a slew of other motions in state court, beginning with a Motion for Appropriate Relief ("MAR") in the North Carolina Court of Appeals on May 18, 2009 (Docket Entry 11-4), which the court dismissed on May 28, 2009, without prejudice to allow filing in the Davidson County Superior Court (Docket Entry 11-6). On December 10, 2009, Petitioner filed a second MAR in the North Carolina Supreme Court, which the court dismissed without prejudice on March 11, 2010. (Docket Entry 11-7.) On June 21, 2010, Petitioner mailed a third MAR to the North Carolina Court of Appeals, which that court stamped and filed on June 24, 2010 (Docket Entry 11-8), and denied on July 12, 2010 (Docket Entry 11-10). Petitioner immediately thereafter - July 27, 2010 - filed a fourth MAR and a PDR with the North Carolina Court of Appeals (Docket Entries XX-X-XX-X), which the court dismissed without prejudice on August 12, 2010 (Docket Entry 12-6).
Later, on April 3, 2013, Petitioner filed a fifth MAR in the Superior Court of Davidson County, and that court summarily denied his motion on April, 12, 2013. (Docket Entry 2, ¶ 11(a); Docket Entry 12-7.) Petitioner then filed a petition for writ of certiorari with the North Carolina Court of Appeals seeking review of the denial of his fifth MAR on May 15, 2013. (Docket Entry 13-1.) On June 6, 2013, the North Carolina Court of Appeals denied his petition. (Docket Entry 13-3.) On April 16, 2013, Petitioner petitioned the North Carolina Supreme Court for a writ of certiorari to review the Davidson County Superior Court decision, and that court denied the petition on June 12, 2013. (Docket Entry 13-4.) Also on April 29, 2013, Petitioner filed a Motion for Severance with the North Carolina Supreme Court that the court dismissed on June 12, 2013. (Docket Entry 2, ¶ 11(c); Docket Entry 13-6).
Finally, Petitioner signed his Petition, under penalty of perjury, and dated it for mailing on August 27, 2013 (Docket Entry 2 at 15), and the Court stamped and filed it on August 30, 2013 (Docket Entry 1 at 1; Docket Entry 2 at 1). Respondent has moved to dismiss the Petition on statute of limitation grounds. (Docket Entry 10.) Petitioner filed a response (Docket Entry 15), a supplement to his response (Docket Entry 16), and an affidavit (Docket Entry 17) regarding Respondent's instant Motion. For the reasons that follow, the Court should grant Respondent's instant Motion.
Petitioner raises four claims for relief in his Petition: (1) "Objection to joinder/motion for severance" (Docket Entry 2 at 5); (2) "Aggravating and mitigating factors" (id. at 7); (3) "Marriage challenge because racial discrimination and racial prejudice to Defendant's United States constitutional rights as a married citizen" (id. at 8); and (4) "Obstruction of justice and conflict of interests" (id. at 10).
Respondent moves for dismissal of the Petition on the grounds that Petitioner filed his Petition outside of the one-year limitation period. See 28 U.S.C. § 2244(d)(1). In order to assess Respondent's statute of limitations argument, the undersigned must first determine when Petitioner's one-year period to file his Section 2254 Petition commenced. The United States Court of Appeals for the Fourth Circuit has explained:
Under § 2244(d)(1)(A)-(D), the one-year limitation period begins to run from the latest of several potential starting dates:
(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 ...