United States District Court, Middle District of North Carolina
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, United States 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 4, 2011, a jury in the Superior Court of Randolph County found Petitioner guilty of perpetrating a hoax by use of a false bomb in case 10CRS51743. (Docket Entry 2, ¶¶ 1, 2, 4-6; see also Docket Entry 6-3 at 11 (verdict).) On that same date, Petitioner pled guilty to attaining habitual felon status in case 10CRS5064. (Docket Entry 2, ¶¶ 2, 6; see also Docket Entry 6-3 at 12-15 (transcript of plea).) The trial court sentenced Petitioner to 116 to 149 months of imprisonment. (Docket Entry 2, ¶ 3; see also Docket Entry 6-3 at 18-19 (judgment).)
Petitioner appealed and, on December 4, 2012, the North Carolina Court of Appeals issued a published decision finding no error in part and no prejudicial error in part. State v. Golden, ___ N.C.App. ___, 735 S.E.2d 425 (2012). Petitioner filed neither a petition for discretionary review with the North Carolina Supreme Court nor a petition for a writ of certiorari with the United States Supreme Court. (Docket Entry 2, ¶ 9(g)-(h).)
While the North Carolina Court of Appeals maintained jurisdiction over his direct appeal, Petitioner filed a pro se motion for appropriate relief (“MAR”) with the state trial court on May 15, 2012. (Docket Entry 2, ¶¶ 10, 11(a)(1)-(6); see also Docket Entry 7-3.) The trial court summarily denied that motion on June 6, 2012. (Docket Entry 2, ¶ 11(7)-(8); see also Docket Entry 7-4.) Petitioner then filed a pro se certiorari petition with the North Carolina Court of Appeals, which that court stamped as filed on July 6, 2012. (Docket Entry 2, ¶ 11(b)(1)-(6); see also Docket Entry 7-5.) The Court of Appeals denied that petition on July 24, 2012. (Docket Entry 2, ¶ 11(b)(7)-(8); see also Docket Entry 7-7.) Subsequently, Petitioner submitted a certiorari petition to the North Carolina Supreme Court (Docket Entry 2, ¶ 11(c)(1)-(6); Docket Entry 8-1), which that court accepted as filed on August 22, 2012 (Docket Entry 2, ¶ 11(c)(3); see also Docket Entry 8-2 at 2), and dismissed on October 4, 2012 (Docket Entry 2, ¶ 11(c)(7)-(8); Docket Entry 8-2).
Petitioner thereafter submitted his Petition in this Court (Docket Entry 2), which he failed to date as mailed (see id. at 20), but which contained notarized “acknowledgments” dated January 28, 2014, and February 6, 2014 (see id. at 24, 33). The Court received the Petition and stamped it as filed on February 11, 2014. (See id. at 1.) Respondent moved for summary judgment on statute of limitation grounds and on the alternative grounds that the claims in the Petition fail as a matter of law. (Docket Entry 5.) Petitioner has filed responsive documents (Docket Entries 11, 13), as well as a motion seeking appointment of counsel (Docket Entry 10), and Respondent has replied (Docket Entry 12). For the reasons that follow, the Court should find the Petition barred as untimely.
Petitioner raises three claims for relief in his Petition: (1) the trial court erred by not retroactively applying the 2011 amendments to North Carolina’s Structured Sentencing laws (the Justice Reinvestment Act (“JRA”)) to Petitioner’s sentence (Docket Entry 2 at 9); (2) his trial counsel provided ineffective assistance in that he lacked trial experience and misadvised Petitioner to reject a plea offer (id. at 11); and (3) failure to apply the JRA retroactively to Petitioner’s sentence violated his Eighth Amendment rights and constituted a “fundamental miscarriage of justice” (id. at 14).
Respondent requests summary judgment primarily on the ground that the Petition was filed outside of the one-year limitation period, 28 U.S.C. § 2244(d)(1). (Docket Entry 6 at 5-9.) In order to assess Respondent’s statute of limitation 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 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 ...