Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rhodes v. Duke

United States District Court, E.D. North Carolina, Western Division

May 20, 2015

GRADIE LEE RHODES, Petitioner,
v.
RICKY DUKE, Respondent.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter came before the court on the motion to dismiss (DE 9) pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] Petitioner did not respond to respondent's motion. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants respondent's motion.

STATEMENT OF CASE

On February 8, 2010, in the New Hanover County Superior Court, petitioner pleaded guilty to first-degree murder, and was sentenced to life imprisonment without parole. (Pet. Attach. pp. 20-23, 28.) Petitioner did not file a direct appeal. (Id. ¶ 8.)

On November 21, 2013, petitioner filed a pro se motion for appropriate relief ("MAR"), motion for preparation of stenographic transcript, and motion to withdraw his guilty plea in the New Hanover County Superior Court. (Id. Attach. pp. 2-16, 33-43.) On December 19, 2013, the superior court denied petitioner's motions. (Id. pp. 45-47.) On January 16, 2014, petitioner filed a pro se petition for a writ of certiorari in the North Carolina Court of Appeals.[2] (Resp't's Ex. 1.)

On March 10, 2014, [3] petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raised the following claims in his § 2254 petition: (1) his guilty plea was involuntary and invalid; (2) his "conviction [was] obtained due to the denial of the right to appeal, without knowing, voluntary, and valid waiver;" (3) he is entitled to appellate review of the denial of his motion to withdraw his guilty plea, which was incorporated into his MAR; and (4) he was denied effective assistance of counsel because his attorney failed to discuss any potential defenses, including self-defense. Respondent subsequently moved to dismiss petitioner's habeas petition on the grounds that it was filed outside of the statute of limitations, and therefore is time-barred. Although petitioner was notified of respondent's motion to dismiss, petitioner did not respond.

DISCUSSION

A. Standard of Review

A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A claim is stated if the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the [petitioner], " but does not consider "legal conclusions, elements of a cause of action, ... bare assertions devoid of further factual enhancement[, ]... unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, this plausibility standard requires a petitioner to articulate facts, that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 557).

B. Analysis

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a writ of habeas corpus by a person in custody pursuant to the judgment of a state court must be filed within one year. 28 U.S.C. § 2244(d)(1). The period begins to run from the latest of several 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... is removed...; C) the date on which the constitutional right 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.

Id.

The statutory period began to run in this case on the date petitioner's judgment became final.[4] Judgment in this case was entered on February 8, 2010. Petitioner thereafter had 14 days after the entry of judgment to file an appeal. N.C. R. of App. P. 4(a) (amended October 18, 2001, to allow fourteen (14) days to file notice of appeal). Petitioner did not file an appeal. Therefore, petitioner's judgment became final on February 22, 2010. As a result, petitioner's one-year statutory ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.