United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
a state inmate, petitions this court for a writ of habeas
corpus pro se pursuant to 28 U.S.C. § 2254. The
matter comes before the court on respondent's motion to
dismiss (DE 8) 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.
10, 1991, petitioner, in the Jones County Superior Court,
pleaded guilty to second-degree murder, and was sentenced to
life imprisonment. (Resp't's Mem. Ex. 1, p. 1).
Petitioner subsequently appealed his conviction and sentence.
See State v. Griffin, 109 N.C.App. 131, 425 S.E.2d
722 (1993). On February 16, 1993, the North Carolina Court of
Appeals vacated petitioner's judgment and remanded the
action to the trial court for re-sentencing. See id.
at 133, 723. On January 24, 1994, the superior court
subsequently re-sentenced petitioner and once again imposed a
term of life imprisonment. (Resp't's Mem. Ex. 2, p.
1). Petitioner appealed his new sentence, and the court of
appeals found no error. (Id. p. 9). The North
Carolina Supreme Court then denied petitioner's petition
for discretionary review on July 27, 1995. State v.
Griffin, 340 N.C. 570, 460 S.E.2d 325 (1995).
November 9, 2005, petitioner, through counsel, filed a motion
for appropriate relief (“MAR”) in the Jones
County Superior Court, which was denied on April 20, 2006.
(Resp't's Mem. Ex. 2). Petitioner subsequently filed
a petition for a writ of certiorari in the court of appeals.
(Id.) The court of appeals denied the petition on
November 13, 2007. (Id.) Petitioner then filed a
second MAR in the Jones County Superior Court on October 28,
2015, which was denied on December 1, 2015. (Id.) On
April 7, 2016, petitioner filed a petition for a writ of
certiorari in the court of appeals. (Id. Ex. 3). The
court of appeals denied the writ on April 26, 2016.
(Id. Ex. 5).
16, 2016,  petitioner filed the instant petition for
a writ of habeas corpus pursuant to 28 U.S.C. §
2254. In his petition, petitioner asserts
the following grounds for relief: his guilty plea was not
voluntary; he received ineffective assistance of counsel; his
sentence was unauthorized under state law; his aggravating
factors were improperly found by the trial judge rather than
a jury; his aggravating factors were not alleged in his
indictment; and there was a “significant change in the
law.” (Pet. pp. 3-9).
Motion to Dismiss
Standard of Review
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).
argues that petitioner's § 2254 petition is
time-barred. 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
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 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 ...