United States District Court, Western District of North Carolina, Statesville Division
FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court upon initial review of Marshall Lee Brown, Jr.’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. ECF No. 1.
Petitioner was indicted by an Iredell County, North Carolina grand jury on the charge of first degree murder. See State v. Brown, 616 S.E.2d 30, *1 ( N.C.App. 2005) (unpublished). Pursuant to a plea agreement, Petitioner pled no contest to the lesser offense of second degree murder. Id. For sentencing purposes, Petitioner stipulated to a prior record level 3, and to the existence of an aggravating factor, that he knowingly created a risk of death to more than one person by means of a weapon or device which could normally be hazardous to the lives of more than one person. Id. The trial court imposed an active sentence in the aggravated range of 240 to 297 months. Id. Judgment was entered on March 25, 2002. Id.
Petitioner filed a direct appeal in the North Carolina Court of Appeals, which was denied on August 2, 2005. Id. Petitioner did not seek further review in the North Carolina Supreme Court. Pet. 2, ECF No. 1.
On December 27, 2005, Petitioner filed a Motion for Appropriate Relief (“MAR”) in the Iredell County Superior Court. Pet., supra, at 3. The MAR was denied without a hearing on December 30, 2005. Pet., supra, at 3. Petitioner did not seek discretionary review of the superior court’s decision in the appellate courts.
On June 18, 2013, Petitioner filed a second MAR in the Iredell County Superior Court. Pet., supra, at 4. The MAR was denied without a hearing on September 27, 2013. Pet., supra, at 4. This time, Petitioner sought discretionary review of the superior court’s decision by filing a petition for writ of certiorari in the North Carolina Court of Appeals, which was denied on November, 12, 2013. Pet., supra, at 4, 6. He then filed a petition for writ of certiorari in the North Carolina Supreme Court, which was denied on January 23, 2014. Pet. 14, ECF No. 1. Petitioner filed the instant § 2254 petition on January 23, 2015. ECF No. 1.
II. STANDARD OF REVIEW
The Court is guided by Rule 4 of the Rules Governing Section 2254 Cases, which directs district courts to examine habeas petitions promptly. Rule 4, 28 U.S.C.A. foll. § 2254. When it plainly appears from any such petition and any attached exhibits that the petitioner is not entitled to relief, the reviewing court must dismiss the motion. Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides a one-year statute of limitations for § 2254 petitions. 28 U.S.C. § 2244(d)(1). The limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). The limitations period is tolled during the pendency of a properly filed state post-conviction action. § 2244(d)(2).
Petitioner’s conviction became final on or about September 6, 2005. As noted, the North Carolina Court of Appeals issued its opinion affirming Petitioner's conviction and sentence on August 2, 2005. Petitioner then had thirty-five days to file a petition for discretionary review to the North Carolina Supreme Court. See N.C. R. App. P. 15(b) (“A petition for review following determination by the Court of Appeals shall be . . . filed and served within fifteen days after the mandate of the Court of Appeals has been issued to the trial tribunal.”); N.C. R. App. P. 32(b) (“Unless a court orders otherwise, its clerk shall enter judgment and issue the mandate of the court twenty days after the written opinion of the court has been filed with the clerk.”). Petitioner did not seek discretionary review during that thirty-five-day time frame. Therefore, his conviction became final on September 6, 2005, when the time for seeking review expired. See § 2244(d)(1)(A); Gonzalez v. Thaler, 132 S.Ct. 641, 656 (2012) (“We hold that, for a state prisoner who does not seek review in a State's highest court, the judgment becomes ‘final’ on the date that the time for seeking such review expires.”).
The federal statute of limitations then proceeded to run for 112 days until Petitioner filed his first MAR in Iredell County Superior Court on December 27, 2005. The limitations period was tolled until December 30, 2005, when the superior court denied the MAR. See § 2244(d)(2).
The statute of limitations ran for an additional 253 days until it fully expired on or about September 9, 2006. Because Petitioner’s second MAR was filed after the federal one-year statute of limitations period had expired, it neither tolled nor restarted the limitations period. See Minter v. Beck, 230 F.3d 663, 665–66 (4th Cir. 2000) (concluding that a § 2254 petition was “clearly ...