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 3.) On August 10, 2010, 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, and trafficking by transporting more than 400 grams of cocaine, in cases 09 CRS 042811-13, and received a consolidated judgment with a statutorily-mandated term of 175 to 219 months in prison. ( Id., ¶¶ 1-6; id. at 114-15.) He did not appeal. ( Id., ¶ 8.)
On August 3, 2011, Petitioner filed a Motion for Appropriate Relief ("MAR") with the trial court. ( Id., ¶ 11(a); id. at 73-97.) On November 23, 2011, the trial court denied Petitioner's MAR. ( Id., ¶ 11(a); id. at 71-72; Docket Entry 7-2.) Petitioner then sought certiorari review with the North Carolina Court of Appeals on January 17, 2012. (Docket Entry 3, ¶ 11(b); id. at 53-70.) On February 28, 2012, the North Carolina Court of Appeals denied that petition. ( Id., ¶ 11(b); Docket Entry 7-4 at 2.)
Finally, Petitioner signed his Petition, under penalty of perjury, and dated it for mailing on December 16, 2013 (Docket Entry 3 at 17), and the Court stamped and filed the Petition on December 19, 2013 (id. at 1). Respondent has moved for summary judgment on the merits (Docket Entry 7 at 2-14) and for violating the statute of limitations (id. at 14-20). Petitioner responded. (Docket Entry 9.) For the reasons that follow, the Court should grant Respondent's instant Motion because Petitioner filed his Petition outside of the one-year limitations period.
The Petition raises four grounds for relief: (1) "Ineffective [a]ssistance of [c]ounsel" for failing to "investigate to the fullest" and for violation of "Article 36 of the Vienna Convention" (Docket Entry 3 at 35-37); (2) "The trial [c]ourt erred by [a]dmitting an indictment that is [d]efective" because the "[e]vidence [p]resented to the Grand Jury of Guilford County [d]id [n]ot [a]mount to [p]rove [b]eyond [a] REASONABLE DOUBT that [Petitioner] was [the] [p]erpretrator [sic] of the crime" (id. at 43 (emphasis in original)); (3) "The [trial] [c]ourt [e]rred [b]y [a]ccepting [t]he [g]uilty [p]lea when there is no [f]actual [b]asis, [a]nd [t]he [p]lea [w]as [n]ot knowing, voluntary and intelligent" (id. at 44) and the "sentence was grossly [d]isproportionate" to the offense (id. at 46); and (4) "Violation of the Equal Protection Clause by denying [r]etroactivity of the law" (id. at 34) specifically North Carolina General Statute "§ 90-96(a)" (id. at 51).
Respondent moves for summary judgment on the grounds that Petitioner filed his Petition outside of the one-year limitations period, see 28 U.S.C. § 2244(d)(1). (Docket Entry 7 at 14-20.) In order to assess Respondent's statute of limitations argument, the undersigned must first determine when Petitioner's one-year period to file his 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 contend that subparagraphs (B) or (C) apply in this situation. (See Docket Entries 3, 5, 6, 7, 9.) However, Petitioner does assert that subparagraph (D) applies. (Docket Entry 3 at 27.) Alternatively, Petitioner argues, for reasons detailed below, that the statute of limitations should not prohibit the Court from addressing the merits of his case. (Id. ...