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Burton v. Solomon

United States District Court, M.D. North Carolina

February 10, 2015

MICHAEL WAYNE BURTON, Petitioner,
v.
GEORGE T. SOLOMON, 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 September 28, 2011, in the Superior Court of Durham County, a jury found Petitioner guilty of first degree arson in case 11 CRS 050743, and the trial court sentenced Petitioner to 67 to 90 months imprisonment. (See id., ¶¶ 1-6.)[1] Petitioner appealed. (Id., ¶ 9.) On December 4, 2012, the North Carolina Court of Appeals affirmed. See State v. Burton, ___ N.C.App. ___, 735 S.E.2d 400 (2012). On January 7, 2014, Petitioner sought certiorari review with the North Carolina Supreme Court. (See Docket Entry 2, ¶ 9(g); Docket Entry 6-6.)[2] The North Carolina Supreme Court denied the certiorari petition on January 23, 2014. (See Docket Entry 6-7.)

Finally, Petitioner signed the instant Petition, under penalty of perjury, and dated it for mailing on April 28, 2014 (Docket Entry 2 at 10), and the Court stamped and filed the Petition on May 1, 2014 (id. at 1).[3] Respondent filed a Motion for Summary Judgment (Docket Entry 5), and Petitioner responded (Docket Entry 8). In addition, Petitioner filed a Motion to Withdraw Habeas Corpus Proceeding Without Prejudice to Allow [Petitioner] to Exhaust his State Remedies (Docket Entry 9), which Respondent opposed (Docket Entry 10). 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] and the Court should deny Petitioner's instant Motion for futility.

Petitioner's Claims

The Petition raises three grounds for relief: (1) "The trial court erred when it denied the Defense's Motion for Dismissal at the close of evidence" (Docket Entry 2 at 3); (2) "The [trial] court erred in not granting the Defense's Motion for a Continuance to present evidence of an alibi defense" (id. at 4); and (3) "Defense counsel was ineffective because [he] failed to motion for a mistrial when a witness gave inadmissible evidence" (id. at 5).[5]

Respondent's Motion for Summary Judgment

Respondent moves for summary judgment on the merits of the Petition (Docket Entry 6 at 3-12) and for untimeliness (id. at 12-20). 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. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).

Neither Petitioner nor Respondent contends that subparagraphs (B), (C), or (D) apply in this situation. (See Docket Entries 2, 4, 5, 6, 8, 9, 10.) However, Petitioner argues that the statute of limitations should not prohibit the Court from addressing the merits of his case. (See Docket Entry 8.) Thus, the ...


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