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Rayo v. Perry

United States District Court, M.D. North Carolina

February 9, 2015

TEODORO CAMPOS RAYO, 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 November 7, 2011, in the Superior Court of Durham County, Petitioner pled guilty to trafficking in cocaine by possession of 200 to 400 grams, trafficking in cocaine by transportation of 200 to 400 grams, and conspiring to traffic 200 to 400 grams of cocaine, in cases 11 CRS 074156, 074157, and 074159, and the trial court sentenced Petitioner to 70 to 84 months imprisonment. (See id., ¶¶ 1-6; Docket Entry 2-1 at 13-14.)[1] He did not appeal. (Docket Entry 2, ¶ 8.)

On August 29, 2013, Petitioner filed a Motion for Appropriate Relief ("MAR") in the trial court. (See id., ¶ 11(a); see also id. at 38-59.) The trial court denied the MAR on September 27, 2013. ( Id., ¶ 11(a); see also id. at 33-37.) Petitioner then filed a Motion for Reconsideration on October 23, 2013. (Id. at 27-32.)[2] On October 30, 2013, the trial court denied that motion. (Id. at 26.) Petitioner then sought certiorari review with the North Carolina Court of Appeals on January 6, 2014. (See id., ¶ 11(b); see also id. at 12-25.) The North Carolina Court of Appeals denied that petition on January 23, 2014. (Id. at 11.)

Finally, Petitioner signed the instant Petition, under penalty of perjury, and dated it for mailing on April 14, 2014 (id. at 10), and the Court stamped and filed the Petition on April 17, 2014 (id. at 1).[3] Respondent filed a Motion for Summary Judgment (Docket Entry 5), and Petitioner responded (Docket Entry 8). 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.[4]

Petitioner's Claims

The Petition raises five grounds for relief: (1) "Grossly [d]isproportionate [s]entence and [c]ruel and [u]nusual [p]unishment" (Docket Entry 2 at 3); (2) "Violation of [d]ue [p]rocess by denying [Petitioner] consular visits [under] Article 36 of the Vienna Convention" (id. at 4); (3) "Ineffective [a]ssistance of [c]ounsel" (id. at 5) because counsel failed to investigate the criminal matters to the fullest, did not object to the State's factual basis, failed to advise him of his right to appeal, failed to appeal, failed to contact Petitioner's consul, failed to move for suppression of evidence, failed to withdraw from representation, and coerced Petitioner into a guilty plea (id. at 46-49); (4) "Invalid and unknowing guilty plea" (id. at 5) because there was not a factual basis for the plea, the traffic stop was made without reasonable suspicion, the State performed an illegal search, the State racially profiled Petitioner, the confidential informant did not testify, Petitioner never admitted his guilt, and counsel promised Petitioner a sentence not to exceed 35 to 42 months (id. at 50-51);[5] and (5) "Violation of the Equal Protection Clause by denying [r]etroactivty of the law" (id. at 6), specifically North Carolina General Statute Section 15A-1340.18 (id. at 23).[6]

Discussion

Respondent moves for summary judgment on the merits of the Petition (Docket Entry 6 at 2-13) and for untimeliness (id. at 13-20). 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. ...


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