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Lewis v. Perry

United States District Court, M.D. North Carolina

June 29, 2015

DONNELL CHRISTOPHER LEWIS, Petitioner,
v.
FRANK PERRY, Respondent.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOI ELIZABETH PEAKE, Magistrate Judge.

Petitioner Donnell Christopher Lewis, a prisoner of the State of North Carolina, has brought a Petition [Doc. #2] seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as well as a Supplement [Doc. #6] to that Petition. As shown by the Petition and exhibits attached to a Brief [Doc. #3] filed in support of the Petition, on May 28, 2013, in the Superior Court of Guilford County, Petitioner pled guilty to breaking and entering, felony possession of stolen property, two counts of felony larceny, and two counts of having attained the status of a habitual felon. He then received a sentence of 128 to 163 months imprisonment. Petitioner filed no direct appeal. However, on April 25, 2014, Petitioner filed a Motion for Appropriate Relief in the trial court, which subsequently denied relief. Petitioner then filed a certiorari petition in the North Carolina Court of Appeals, which denied that petition on July 7, 2014. Petitioner later filed a notice of appeal and a petition for certiorari with the North Carolina Supreme Court. That court dismissed both filings on August 19, 2014. Petitioner then dated his Petition to this Court as being mailed on September 18, 2014. The Court received it on September 25, 2014. He signed his Supplement on December 3, 2014, and the Court received it on December 8, 2014.

Petitioner's Claims

Petitioner raises three claims for relief in his original Petition. The first is that the state court incorrectly advised him that he faced up to 204 months imprisonment on each charge as a habitual felon, even though he faced only 160 months on each count. The second claim is a variation of the first. Petitioner's third claim alleges that he received ineffective assistance of counsel, apparently based on his attorney allowing him to be misadvised as to the maximum penalty. Finally, in his Supplement, Petitioner adds a claim that his attorney failed to advise him of a plea offer that would have allowed him to receive only 25 months imprisonment. Respondent filed a Motion for Summary Judgment [Doc. #9] opposing Petitioner's original claims on the grounds that they are time barred and meritless and opposing the claim in his Supplement on those grounds and on the ground of procedural bar.

Discussion

Respondent seeks dismissal on the ground that Petitioner filed the Petition outside of the one-year limitations period, 28 U.S.C. § 2244(d)(1). In order to assess Respondent's statute of limitation argument, the Court first must determine when Petitioner's one-year period to file his § 2254 Petition commenced. In this regard, the United States Court of Appeals for the Fourth Circuit has explained that:

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) (emphasis added).

Petitioner does not appear to argue, and the record does not reveal, any basis for concluding that subparagraphs (B), (C), or (D. § 2244(d)(1) apply in this case. All of his claims would certainly have existed, and could have been uncovered through the exercise of due diligence, at the time of his conviction. Therefore, Petitioner's one-year limitation period commenced on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review, " 28 U.S.C. § 2244(d)(1)(A). The Court must examine when direct review (or the time for seeking direct review) of Petitioner's underlying conviction ended.

Here, the state trial court entered judgment against Petitioner on May 28, 2013, and Petitioner did not appeal. Respondent asserts (Respondent's Supporting Brief at 3-4), and Petitioner has not disputed, that Petitioner's convictions became final on that date, because he pled guilty and received a sentence in the presumptive range for his crimes. See N.C. Gen. Stat. § 15A-1340.17(c) & (e) (2010). In North Carolina, defendants who plead guilty have very limited grounds on which they can appeal. See State v. Smith, 193 N.C.App. 739, 741-42, 668 S.E.2d 612, 613-14 (2008) (enumerating limited grounds for appeal for defendants who plead guilty); see also N.C. Gen. Stat. §§ 15A-979(b) & 15A-1444. According to Respondent, Petitioner had no right to appeal because none of these grounds existed. If so, Petitioner's time to file a habeas petition in this Court began to run on May 28, 2013. Hairston v. Beck, 345 F.Supp.2d 535, 537 (M.D. N.C. 2004); accord Redfear v. Smith, No. 5:07CV73-03-MU, 2007 WL 3046345, at *2 (W.D. N.C. Oct. 17, 2007) (unpublished); Marsh v. Beck, No. 1:06CV1108, 2007 WL 2793444, at *2 (M.D. ...


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