United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter came before the court on respondent's motion to dismiss (DE 10) pursuant to Federal Rule of Civil Procedure 12(b)(6). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants respondent's motion.
STATEMENT OF CASE
On January 16, 2008, in the Nash County Superior Court, petitioner was convicted following a jury trial of robbery with a dangerous weapon and possession of a firearm by a felon, and was sentenced to consecutive terms of 117-150 and 20-24 months imprisonment. State v. Hussey, 194 N.C.App. 516, 669 S.E.2d 864 (2008). Petitioner subsequently filed a notice of appeal, and the North Carolina Court of Appeals entered an order finding no error on December 16, 2008. Id.
On January 19, 2012, petitioner filed a pro se motion for appropriate relief ("MAR") in the Nash County Superior Court, which was denied on January 31, 2012. (Resp't's Ex. 6.) Petitioner then dated a second pro se MAR September 24, 2013, and filed it in the superior court on November 7, 2013. (Pet. Attach. 1.) The superior court denied petitioner's MAR on November 20, 2013. (Resp't's Ex. 7.) On December 23, 2013, petitioner filed a pro se petition for a writ of certiorari in the North Carolina Court of Appeals, which was denied on January 7, 2014. (Id. Exs. 8, 10.) On March 27, 2014, petitioner filed a pro se petition for a writ of certiorari in the North Carolina Supreme Court, which was dismissed on April 10, 2014. (Id. Exs. 11, 12.)
On April 23, 2014, petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising the following claims: (1) the trial court lacked territorial and subject matter jurisdiction to enter judgment; (2) the jury instructions were prejudicial and lead to a conviction in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and (3) the conviction was obtained against the preponderance of the evidence. Petitioner also alleged that he received ineffective assistance of appellate counsel and that he did not receive a pre-sentence investigation report in violation of the Due Process Clause. 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. The motion was fully briefed.
A. Motion to Dismiss
1. 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, 677 (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 plaintiff, " 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 plaintiff to articulate facts, that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quotations omitted).
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 ...