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El Bey v. Perry

United States District Court, M.D. North Carolina

March 2, 2015

DERRICK JAVON LINDSEY EL BEY, Petitioner,
v.
FRANK 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 1.) On June 2, 2003, in the Superior Court of Stanly County, Petitioner pled no contest to second degree sexual offense, second degree kidnaping, and two counts of misdemeanor assault on a government official, in cases 02CRS50583, 50585, 54025 and 03CR51274, and received consecutive sentences of imprisonment of 116 to 149 months for the sexual offense and 30 to 45 months for the kidnaping, along with concurrent sentences of four months and three months for the two misdemeanor assaults on a government official. ( Id., ¶¶ 1-6; Docket Entry 8-3; Docket Entry 8-5.) Petitioner did not appeal. See Lindsey El Bey v. Perry, No. 1:14-cv-827, Docket Entry 1, ¶ 8 (M.D. N.C. ).[1]

On September 15, 2008, Petitioner filed a Motion for Preparation of a Stenographic Transcript in the trial court. (Docket Entry 8-6.) The trial court denied the Motion on October 10, 2008. (Docket Entry 8-7.) On July 2, 2014, Petitioner filed a second Motion for Preparation of Stenographic Transcript. (Docket Entry 8-8.) The trial court denied relief again on July 15, 2014. (Docket Entry 8-9.) On July 25, 2014, Petitioner filed a Motion for Appropriate Relief ("MAR") with the trial court. (Docket Entry 8-10.)[2] The trial court denied the MAR on August 28, 2014. (Docket Entry 8-11.) Petitioner then sought certiorari review with the North Carolina Supreme Court on September 8, 2014. (Docket Entry 8-12.)[3] The North Carolina Supreme Court dismissed the petition on December 18, 2014. (Docket Entry 8-13.) On September 21, 2014, Petitioner filed a habeas petition in this Court, alleging the same grounds for relief as he does now. See Lindsey El Bey v. Perry, No. 1:14-cv-827, Docket Entry 1 (M.D. N.C. ). The Court (per United States District Judge Thomas D. Schroeder) dismissed the petition without prejudice to allow Petitioner to refile on proper Section 2254 forms. Lindsey El Bey v. Perry, No. 1:14-cv-827, Docket Entry 11 (M.D. N.C. ).

Finally, Petitioner signed this Petition, under penalty of perjury, and dated it for mailing on January 1, 2015 (Docket Entry 1 at 14), and the Court stamped and filed the Petition on January 8, 2015 (id. at 1).[4] Respondent moved to dismiss the Petition as untimely (Docket Entry 7), Petitioner responded (Docket Entries 10, 11, 12), and Respondent replied (Docket Entry 13). For the reasons that follow, the Court should grant Respondent's instant Motion because Petitioner submitted his Petition beyond the one-year limitations period.

Petitioner's Claims

The Petition raises six grounds for relief: (1) "Unlawful arrest which is a violation of the (4th) Amendment to the Constitution of the United States, and [A]rticle (1) [S]ection (20) of the North Carolina [C]onstitution" (Docket Entry 1 at 3); (2) "Unlawful [d]etainer which is a violation of the (4th) and (5th) Amendment[s] of the United States Constitution, and Article (1) [S]ection (20) of the North Carolina Constitution" (id. at 4); (3) "Fraudulent Misrepresentation, which is a violation of the (6th) Amendment" because appointed counsel misled Petitioner on his chances of winning at trial (id. at 5-6); (4) "Material Misrepresentation, which is a violation of the (6th) Amendment" because appointed counsel misled Petition on his chances of winning at trial (id. at 7-8); (5) "Ineffective [a]ssistance of coun[sel], which is a violation of the (6th) Amendment of the Constitution of United States, and Article (1) [S]ection (23) of the NORTH CAROLINA CONSTITUTION" because appointed counsel wrongfully convinced Petitioner to plead guilty (id. at 10 (emphasis in original)); and (6) "Slavery & Servitude which is a violation of Article (4)' of the Declaration of Human Rights and Article (1) [S]ection (17) of the NORTH CAROLINA CONSTITUTION" (id. at 11 (emphasis in original)).

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 8 at 3-7.) 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 contend that subparagraphs (B), (C), or (D) apply in this situation. (See Docket Entries 1, 7, 8, 10, 13.) However, Petitioner asserts, for reasons detailed below, that the statute of limitations should not prohibit the Court from addressing the merits of his case. (Docket Entry 1 at 13; Docket ...


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