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Cruz v. Marshall

United States District Court, M.D. North Carolina

January 9, 2015

ALBERTO MARQUEZ CRUZ, Petitioner,
v.
BOB MARSHALL, FRANK L. PERRY, [1] Respondents.

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 3.) On January 10, 2011, in the Superior Court of Guilford County, Petitioner pled guilty to conspiracy to traffic in more than 400 grams of cocaine, trafficking by possessing more than 400 grams of cocaine, trafficking by transporting more than 400 grams of cocaine, trafficking by delivering more than 400 grams of cocaine, trafficking by transporting 28-200 grams of cocaine, trafficking by sale and delivery of 28-200 grams of cocaine, and trafficking by possessing 28-200 grams of cocaine, in cases 10 CRS 84147-50 and 84152-53, and received a consolidated judgment with a mandatory term of 175 to 219 months in prison. (Docket Entry 3, ¶¶ 1-6; Docket Entry 3-2 at 41-43.)[2] He did not appeal. (Docket Entry 3, ¶ 8.)

On March 14, 2013, Petitioner filed a Motion for Appropriate Relief ("MAR") in the trial court. (Docket Entry 3, ¶ 11(a); Docket Entry 3-1 at 11-15; Docket Entry 3-2 at 1-22.)[3] On May 22, 2013, in a five page opinion, the trial court denied Petitioner's MAR. (Docket Entry 3, ¶ 11(a); Docket Entry 3-1 at 6-10.) On August 14, 2013, Petitioner filed a Motion for Reconsideration of the MAR (Docket Entry 3, ¶ 11(b); Docket Entry 3 at 27-31; Docket Entry 3-1 at 1-5), [4] which the trial court denied on August 23, 2013 (Docket Entry 3, ¶ 11(b); Docket Entry 3 at 26). Petitioner sought certiorari review with the North Carolina Court of Appeals. (Docket Entry 3, ¶ 11(c); Docket Entry 3 at 21-25.) On October 24, 2013, the North Carolina Court of Appeals denied that petition. (Docket Entry 3, ¶ 11(c); Docket Entry 3 at 20.)

Finally, Petitioner signed his Petition, under penalty of perjury, and dated it for mailing on December 4, 2013 (Docket Entry 3 at 11), and the Court stamped and filed the Petition on December 9, 2013 (id. at 1).[5] Respondent has moved to dismiss the Petition on statute of limitation grounds (Docket Entry 6), Petitioner filed a response to Respondent's instant Motion (Docket Entry 9), Respondent filed a reply (Docket Entry 10), and Petitioner filed a surreply (Docket Entry 11).[6] For the reasons that follow, the Court should grant Respondent's instant Motion.

Petitioner's Claims

Petitioner raises five claims for relief in his Petition: (1) "Violation of due process by denying the Petitioner's right of consular visit. Vienna Convention Article 36" (Docket Entry 3 at 13); (2) "Violation of [d]ue [p]rocess when plea of guilty was unknowing, unintelligent, and unknowing [sic], " because the plea agreement he signed provided for a sentence "not to exceed 35-42 months" (id. at 14); (3) "Ineffective [a]ssistance of counsel violating Sixth Amendment[] of the U.S. Constitution, " due to his counsel's failure to use "his investigative powers to look more into the details of [] [P]etitioner's charges, prior record level and [to] give a proper notice of appeal" (id. at 15 (emphasis removed)); (4) "Violation of due process by sentencing the defendant out of the mitigated range - Level I" (id. at 16); and (5) "Violation of [d]ue [p]rocess when factual material [w]as not presented to the defese [sic] violating Brady [v. Maryland, 373 U.S. 83 (1963)] law" (id. at 17).

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 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 the exercise of due diligence.

Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008). The Court must determine timeliness on claim-by-claim basis. See Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005). Neither Petitioner nor Respondent claim that subparagraphs (B) or (C) apply in this situation. (See Docket Entries 3, 6, 7, 9, 10, 11.) However, Petitioner does assert that subparagraph (D) applies. (Docket Entry 3 at 18.) Alternatively, Petitioner claims, for reasons detailed below, that the statute of limitations should not prohibit the Court from addressing the merits of ...


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