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Floyd v. Perry

United States District Court, M.D. North Carolina

May 19, 2016

CHRISTOPHER NATHANIEL FLOYD, Petitioner,
v.
FRANK L. PERRY, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States 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 September 1, 2015, in the Superior Court of Alamance County, Petitioner pled guilty to felony eluding arrest with a motor vehicle, felony possession of a firearm by a felon, and habitual felon status in cases 10 CRS 53385, 10 CRS 53387, and 13 CRS 4768, respectively. (See id., ¶¶ 1, 2, 4-6; see also Docket Entry 8-2 (plea transcript); Docket Entry 8-3 (judgment and commitment forms).) In accordance with the plea agreement, the trial court consolidated those convictions and imposed one Class C habitual felon sentence in the mitigated range of 75 to 99 months' imprisonment. (See Docket Entry 1, ¶ 3; see also Docket Entry 8-2; Docket Entry 8-3; Docket Entry 8-4 (findings of aggravating and mitigating factors).)[1] Petitioner did not appeal. (See Docket Entry 1, ¶ 8.)

         Thereafter, Petitioner filed a pro se motion for appropriate relief (“MAR”) in the Alamance County Superior Court (see Docket Entry 1, ¶ 11(a); Docket Entry 1-1 at 1-15), which he dated as Dated: May 19, 2016 (see Docket Entry 1-1 at 16 (order denying MAR giving date of MAR)), and which that court summarily denied on June 20, 2016 (Docket Entry 1-1 at 16-18). Petitioner subsequently filed a pro se certiorari petition with the North Carolina Court of Appeals (see Docket Entry 1, ¶ 11(b); Docket Entry 8-6), which he dated as signed on August 7, 2016 (see Docket Entry 8-6 at 4), and which that court “dismissed due to failure to attach supporting documents” pursuant to Rule 21(c) of the North Carolina Rules of Appellate Procedure on August 29, 2016 (Docket Entry 1-1 at 19).

         Petitioner then signed his instant Petition, under penalty of perjury, and dated it for mailing on October 29, 2016 (see Docket Entry 1 at 15), and the United States District Court for the Eastern District of North Carolina stamped and filed the Petition on November 9, 2016 (see id. at 1).[2] On November 14, 2016 the Eastern District transferred the case to this Court, because Alamance County lies within this District. (See Docket Entries 3, 4; see also 28 U.S.C. § 113(b) (placing Alamance County within Middle District of North Carolina); 28 U.S.C. § 2241(d) (providing that federal habeas petition “may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him” and that “district court wherein such [a petition] is filed in the exercise of its discretion and in furtherance of justice may transfer the [petition] to the other district court for hearing and determination”).)

         Respondent moved for summary judgment on both the merits and untimeliness (Docket Entries 7, 8), and Petitioner responded in opposition (Docket Entries 10, 11). 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.

         Petitioner's Claims

         The Petition raises two grounds for relief: (1) Petitioner's “indictment is fatally defective in violation of the United States Constitution” (Docket Entry 1 at 5); and (2) “[P]etitioner was denied his United States Constitutional [r]ight to effective assistance of counsel” (id. at 7).

         Discussion

         Respondent moves for summary judgment because Petitioner filed his Petition outside of the one-year limitations period, see 28 U.S.C. § 2244(d)(1). (See Docket Entry 8 at 9-17.) 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 ...

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