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Damian v. Perry

United States District Court, M.D. North Carolina

January 29, 2015

IVAN CERVANTES DAMIAN, Petitioner,
v.
FRANK L. PERRY, [1] 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 June 8, 2011, in the Superior Court of Durham County, Petitioner entered an Alford plea to human trafficking child victim, indecent liberties with a child, sexual servitude child victim, and involuntary servitude child victim, in cases 10 CRS 8999-9000, and received a sentence, pursuant to his plea agreement, of 72 to 96 months imprisonment. ( Id., ¶¶ 1-6; id. at 58-61, 65-66.)[2] He did not appeal. ( Id., ¶ 8.)

On September 16, 2013, Petitioner filed a Motion for Appropriate Relief ("MAR") with the trial court. ( Id., ¶ 11(a); id. at 38-52.)[3] On October 10, 2013, the trial court summarily denied Petitioner's MAR. ( Id., ¶ 11(a); id. at 37.) Petitioner then filed a Motion for Reconsideration of the denial of his MAR with the trial court on October 23, 2013. (Id. at 31-36.) The trial court denied the Motion for Reconsideration. (Id. at 30.)[4] Petitioner then sought certiorari review with the North Carolina Court of Appeals on February 24, 2014. (Id. at 22-29.)[5] On March 10, 2014, the North Carolina Court of Appeals denied that certiorari petition. (Id. at 12.)

Finally, Petitioner signed the instant Petition, under penalty of perjury, and dated it for mailing on March 28, 2014 (id. at 11), and the Court stamped and filed the Petition on April 4, 2014 (id. at 1).[6] Respondent moved to dismiss the Petition as untimely (Docket Entry 6), and 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.

Petitioner's Claims

The Petition raises four grounds for relief: (1) "Violation of Vienna Convention[] [r]ights" (Docket Entry 2 at 4) because Petitioner did not receive "consular visits established by Article 36 of the Vienna Convention" (id. at 27); (2) "Invalid guilty plea" (id. at 5) because "the [p]lea was not knowing, voluntary and neither [sic] intelligent" (id. at 27); (3) "Cruel and [u]nusual [p]unishment when sentence imposed was grossly [d]isproportionate" (id. at 6); and (4) "Ineffective [a]ssistance of [c]ounsel" (id. at 7) because his counsel "fail[ed] to investigate into the [e]lements of all alleged crime, evidences, and to object in time and form [to] the State[]s FACTUAL BASIS'" (id. at 49 (emphasis in original)).[7]

Discussion

Respondent moves to dismiss the Petition 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 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 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 assess timeliness on claim-by-claim basis. See Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005). Neither Petitioner nor Respondent argue that subparagraphs (B) or (C) apply in this situation. (See Docket Entries 2, 3, 5, 6, 7, 9.) However, Petitioner does assert that subparagraph (D) applies. (Docket Entry 2 at 10; Docket Entry 9 at 3.) Alternatively, Petitioner contends, for reasons detailed below, that the statute of limitations should not prohibit the Court from addressing the merits of his case. (Docket Entry ...


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