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Perez v. Perry

United States District Court, M.D. North Carolina

January 28, 2015

JUAN CELSO ZAVALETA PEREZ, Petitioner,
v.
FRANK L. PERRY, Respondent.

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 2.) On August 4, 2010, in the Superior Court of Forsyth County, Petitioner pled guilty to first-degree sex offense of a child, first-degree rape of a child, and indecent liberties with a child, in case 09 CRS 57756, and received a consolidated judgment with a term of imprisonment for 168 to 211 months in prison. ( Id., ¶¶ 1-6; Docket Entry 2-3 at 11-12.)[1] He did not appeal. (Docket Entry 2, ¶ 8.)

On June 18, 2012, Petitioner filed a Motion for Appropriate Relief ("MAR") with the trial court. (Docket Entry 2-2 at 33-41.)[2] On October 1, 2012, the trial court denied Petitioner's MAR. (Id. at 31-32.) Petitioner then filed a second MAR on May 29, 2013. (Docket Entry 2-2 at 1-30.)[3] The trial court denied Petitioner's second MAR on September 3, 2013. (Docket Entry 2-1 at 9.) Petitioner then sought certiorari review with the North Carolina Court of Appeals on February 26, 2014. (Id. at 2-8.)[4] On March 17, 2014, the North Carolina Court of Appeals denied that petition. (Id. at 1.)

Finally, Petitioner signed his Petition, under penalty of perjury, and dated it for mailing on April 8, 2014 (Docket Entry 2 at 14), and the Court stamped and filed the Petition on April 11, 2014 (id. at 1).[5] Respondent has moved to dismiss the Petition as untimely. (Docket Entry 6.) Petitioner responded. (Docket Entry 9.) For the reasons that follow, the Court should grant Respondent's instant Motion because Petitioner submitted his Petition outside of the one-year limitations period.

Petitioner's Claims

The Petition raises four grounds for relief: (1) " Violation of Brady[v. Maryland, 373 U.S. 83 (1963)] law" (Docket Entry 2 at 4) because the State allegedly suppressed an "SBI report and [a] [m]edical report" (Docket Entry 2-2 at 11); (2) "Grossly [d]isproportionate and [c]ruel and unusual [p]unishment" (Docket Entry 2 at 6) because of "the sentence imposed" (Docket Entry 2-2 at 13); (3) "Violation of [d]ue [p]rocess of law by accepting a plea which was invalid, unknowing and involuntary" (Docket Entry 2 at 7) because his counsel "led [] [Petitioner] to believe that [Petitioner] will receive a sentence not to exceed a class I felony for Indecent Liberties with a Minor, level I at the mitigated range" (Docket Entry 2-2 at 16); and (4) "Violation of Article 36 of the Vienna Convention" (Docket Entry 2 at 9).[6]

Discussion

Respondent moves to dismiss the Petition because Petitioner filed his Petition outside of the one-year limitations period, see 28 U.S.C. § 2244(d)(1). (Docket Entry 7 at 3-12.) 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 claim that subparagraphs (B) or (C) apply in this situation. (See Docket Entries 2, 3, 5, 6, 7, 9.) However, in response to Respondent's instant Motion, Petitioner asserts that subparagraph (D) applies. (Docket Entry 9 at 3.) Alternatively, Petitioner claims, for reasons detailed below, that the statute of limitations should not prohibit the Court from addressing the merits of his case. (Id. at 3-9.) Thus, the undersigned must first determine which subparagraph applies in order to decide when the statute of limitations commenced.

Under subparagraph (D), the one-year limitations period begins when the factual predicate of a claim "could have been discovered through the exercise of due diligence, " not upon its actual discovery. 28 U.S.C. § 2244(d)(1)(D); Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004); see also Johnson v. Polk, No. 1:07CV278, 2008 WL 199728, at *3 (M.D. N.C. Jan. 22, 2008) (unpublished) (Tilley, J., adopting recommendation of Sharp, M.J.) ("Under 28 U.S.C. § 2244(d)(1)(D), the limitations period begins to run when the petitioner knows, or ...


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