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Thomas v. Perry

United States District Court, M.D. North Carolina

December 22, 2014

DAVID THOMAS, Petitioner,
v.
FRANK L. PERRY, [1] Respondent.

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 1.) On October 2, 2006, in the Superior Court of Durham County, Petitioner pled guilty to attempted robbery with a dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious injury, and robbery with a dangerous weapon, in cases 05 CRS 53195, 53197, and 53394, and received consecutive sentences of 80 to 105 months and 71 to 95 months of imprisonment. ( Id., ¶¶ 1-6; Docket Entry 6-3.) He did not appeal.[2]

On October 20, 2008, Petitioner filed a Motion for Appropriate Relief ("MAR") in the trial court.[3] On January 12, 2010, the trial court summarily denied Petitioner's MAR.[4] (Docket Entry 6-7.) On December 17, 2010, Petitioner filed a petition for a writ of habeas corpus with the trial court (Docket Entry 6-8), and the trial court summarily denied the petition on January 12, 2011 (Docket Entry 7-1). Immediately thereafter - January 31, 2011 - Petitioner filed a second MAR with the trial court. (Docket Entry 7-2.) While awaiting a ruling on his second MAR, Petitioner petitioned for a writ of mandamus with the North Carolina Court of Appeals - on June 8, 2012 - requesting the Court of Appeals to order the trial court to rule on his pending MAR (Docket Entry 7-3), which the North Carolina Court of Appeals denied on June 15, 2012 (Docket Entry 7-5).[5]

Petitioner then filed a third MAR with the trial court on June 25, 2012 (Docket Entry 7-6), which the court summarily denied on July 5, 2012 (Docket Entry 7-7). Petitioner then filed a fourth MAR with the trial court on August 6, 2012 (Docket Entry 7-8), which the court summarily denied on August 16, 2012 (Docket Entry 7-9). On September 7, 2012, Petitioner petitioned for a writ of certiorari with the North Carolina Court of Appeals, and the court denied the petition on September 21, 2012. (Docket Entry 7-10.) On October 8, 2012, [6] Petitioner filed a "Notice of Appeal Presenting Constitutional Questions" to the North Carolina Supreme Court (Docket Entry 7-11), which dismissed the "Notice" on December 12, 2012 (Docket Entry 7-12).[7]

Finally, Petitioner signed his Petition, under penalty of perjury, and dated it for mailing on May 22, 2013 (Docket Entry 1 at 15), and the Court stamped and filed the Petition on May 30, 2013 (Docket Entry 1 at 1).[8] Respondent has moved to dismiss the Petition on statute of limitation grounds (Docket Entry 5), and Petitioner filed a response to Respondent's instant Motion (Docket Entry 9). For the reasons that follow, the Court should grant Respondent's instant Motion.

Petitioner's Claims

Petitioner raises three claims for relief in his Petition: (1) "Denial of [d]ue [p]rocess by using prior [j]uvenile conviction to erroneously [i]ncrease [Petitioner's] prior [r]ecord [l]evel" (Docket Entry 1 at 5); (2) "The [t]rial court lacked [j]urisdiction to [i]mpose [j]udgment because [Petitioner's] [i]ndictment were [sic] defective thus violating the Due Process Clause of the U.S. Constitution" (id. at 7); and (3) "Denial of [e]ffective [a]ssistance of counsel in violation of the 6th Amendment" (id. at 8).

Discussion

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). (Docket Entry 6 at 3-5.) 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 ...

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