United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter came before the court on the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 10) filed by respondent George Solomon ("respondent"). Also before the court are petitioner's motion for production of privileged documents (DE 8) and motion to amend (DE 13). The motion to dismiss was fully briefed, but respondent did not respond to petitioner's motions. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants petitioner's motion to amend, grants respondent's motion to dismiss, and denies petitioner's motion for production of privileged documents.
STATEMENT OF CASE
On June 17, 2011, in the Cumberland County Superior Court, petitioner was convicted, following a jury trial, of the following: (1) attempted statutory rape of a 13 year old; (2) eight counts of sexual activity by a substitute parent by cunnilingus and fellatio; (3) seven counts of taking indecent liberties with a child; (4) statutory sexual offense of a 14 year old by cunnilingus, fellatio, and penetration; (5) four counts of committing a crime against nature by cunnilingus and fellatio; (6) four counts of statutory sexual offense of a 15 year old by cunnilingus, fellatio, and penetration; and (7) attempted statutory rape of a 15 year old. See State v. Brunson, ___ N.C.App. ___, 727 S.E.2d 916, 918 (2012).
Petitioner subsequently filed a notice of appeal to the North Carolina Court of Appeals. Id . On February 27, 2012, petitioner filed a motion for appropriate relief ("MAR") in the court of appeals. Id. at 918, n.2. On July 17, 2012, the court of appeals affirmed petitioner's convictions and sentence. Id. at 922. In that same opinion, the court of appeals dismissed without prejudice petitioner's MAR to allow petitioner to file the motion with the trial court. Id. at 918, n.2.
On August 2, 2012, petitioner's criminal appellate attorney forwarded petitioner's criminal file to NCPLS, and notified petitioner that NCPLS attorney Sarah Jessica Farber ("Farber") took over petitioner's case for post-conviction proceedings. (See Resp. (DE 14) Ex. F.) On the same date, Farber contacted petitioner by letter and informed petitioner that she was reviewing his request for post-conviction assistance. (Id. Ex. G.) Farber also requested that petitioner not file any motions on petitioner's own behalf because it could prevent her from filing for relief on his behalf. (Id.)
On August 27, 2012, petitioner filed a status update in a related civil rights action, Brunson v. the North Carolina Department of Social Services, No. 5:09-HC-3063-FL (E.D. N.C. dismissed, Aug. 30, 2013), stating that his state court criminal proceedings had "entered the post-conviction stage" and informed the court that he was preparing to file an MAR in the superior court. (Reps't's Mem. Ex. D.) Petitioner also wrote to "Farber several times to remind her of [his] statutory deadline to file habeas corpus, but attorney Farber never responded." (Pet. p. 38.)
On September 30, 2013, NCPLS attorney Dawn Blagrove ("Blagrove") sent petitioner a letter stating that she had not completed her review of petitioner's case. (Resp. (DE 14) Ex. H.) Blagrove's letter also stated: Based upon my initial review and research, I do not believe you have legal grounds for challenging your conviction.... I need to continue to research, however, I think you representing yourself creates a major obstacle.... In the meantime, I ask again for your patience and to not file any motions on your own at this time." (Id.) "At this juncture, [petitioner] decided to terminate [his] relationship with NCPLS for sabotaging [his] deadline to file [his] petition for habeas corpus." (Pet. p. 28.)
On October 17, 2013, petitioner filed a pro se MAR in the Cumberland County Superior Court, which was denied on November 25, 2013. (Pet. pp. 3, 4.) On December 10, 2013, petitioner filed a petition for a writ of certiorari with the North Carolina Court of Appeals, which was denied on December 23, 2013. (Resp't's Mem. Ex. C.)
On January 9, 2014, petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raised the following claims in his § 2254 petition: (1) the state failed to receive an evidence report of abuse as required pursuant to N.C. Gen. Stat. § 7B-307(a); (2) the trial court lacked personal and subject matter jurisdiction due to the state's failure to take testimony and oath from detective Hamilton and Guedalia; (3) the arrest warrant was not supported by probable cause; (4) the indictments were not supported by probable cause; (5) the state used evidence obtained pursuant to an unlawful arrest; (6) the state denied petitioner his right to present evidence in his own defense; (7) the state failed to disclose exculpatory evidence; and (8) the grand jury proceedings were unconstitutional. On June 30, 2014, petitioner filed a motion for the production of privileged documents.
Respondent subsequently filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing that petitioner's habeas petition should be dismissed because it was filed outside of the statute of limitations, and therefore is time-barred. The issues raised were fully briefed. Finally, petitioner filed a motion to amend to correct the name of the proper party respondent.
A. Motion to Amend
Petitioner moved the court to amend his petition to include Secretary of Public Safety Frank L. Perry as a party to this action. Petitioner's ...