United States District Court, M.D. North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOE L. WEBSTER, 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.) Respondent has filed an Answer (Docket Entry 5), a Motion for Summary Judgment (Docket Entry 7), and a Brief in Support of the Motion for Summary Judgment (Docket Entry 8). Petitioner was notified of his right to file a Response (Docket Entry 9), however, no such Response was forthcoming. This matter is now prepared for a ruling.
On September 17, 2007, Petitioner pled guilty to one count of robbery with a dangerous weapon and one count of common law robbery, in cases 06 CRS 053924-25. (Docket Entry 1, §§ 1-6, Attach. 2 at 11-15.) He was sentenced to 82-108 months of imprisonment. (Docket Entry 1, § 3, Attach. 2 at 15.) Petitioner did not file a direct appeal. (Docket Entry 1, § 8.)
Approximately six years later, on October 9, 2013, Petitioner signed and then later filed a Motion for Appropriate Relief ("MAR") in Superior Court, Lee County. (Docket Entry 1, Attach. 1 at 16-51.) On March 14, 2014, Petitioner dated a motion for expedited consideration of his MAR, which he filed in Superior Court, Lee County. ( Id. at 14, 17.) On April 2, 2014, Petitioner dated a request for the status of his MAR and an evidentiary hearing in Superior Court, Lee County. ( Id. at 14.) On April 9, 2014, Petitioner filed a petition for a writ of mandamus in the North Carolina Court of Appeals, which was denied on April 22, 2014. (Docket Entry 8, Ex. 1.) On April 24, 2014, the Superior Court, Lee County, denied Petitioner's MAR, motion for expedited consideration of the MAR, and request for a status report and an evidentiary hearing. (Docket Entry 1, Attach. 1 at 14.)
On April 30, 2014, Petitioner signed and then later filed a certiorari petition in the North Carolina Court of Appeals, seeking review of the April 24, 2014 order of the Superior Court, Lee County, denying his MAR, motion for expedited consideration of his MAR, and request for a status report and an evidentiary hearing. ( Id. at 1-13.) On May 27, 2014, the North Carolina Court of Appeals denied Petitioner's certiorari petition. (Docket 1 at 20.) Petitioner dated the instant federal habeas petition May 28, 2014 and filed it in this Court on June 2, 2014. (Docket 1.)
Petitioner raises seven claims: (1) a Brady violation by the State, (2) the guilty plea was not made knowingly, voluntarily, and intelligently and lacked a factual basis, (3) his conviction was in violation of due process, (4) his right to equal protection was violated and he is entitled to retroactive beneficial changes in North Carolina sentencing law, (5) that he received ineffective assistance of counsel due to counsel's failure to investigate the elements of the alleged crime and to object to the State's factual basis and to the sentence imposed, (6) that his sentences were grossly disproportionate and "not graduated to the offense, " (7) and "error coram nobis on previous convictions." ( See id. § 12, Grounds One through Seven.)
Respondent requests dismissal on the ground that the Petition was filed beyond the one-year limitation period imposed by 28 U.S.C. § 2244(d)(1). (Docket Entry 8.) In order to assess this argument, the Court first must determine when Petitioner's one-year period to file his § 2254 petition commenced. In this regard, the United States Court of Appeals for the Fourth Circuit has explained that:
Under § 2244(d)(1)(A)-(D), the one-year limitation period begins to ran 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 ...