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Gardner v. Hooks

United States District Court, M.D. North Carolina

May 26, 2017

DERRICK GARDNER, Petitioner,
v.
ERIC A. HOOKS, 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 2.) On January 16, 2014, in the Superior Court of Rowan County, a jury found Petitioner guilty of one count of failure to register as a sex offender and one count of violation of sex offender residential restrictions in case 13 CRS 53450. See State v. Gardner, 237 N.C.App. 496, 497, 769 S.E.2d 196, 197 (2014). Petitioner subsequently admitted his habitual felon status in case 13 CRS 2785. Id. The trial court consolidated those convictions and sentenced Petitioner to one Class C habitual felon sentence in the presumptive range of 88 to 118 months' imprisonment.

         Petitioner appealed (see Docket Entry 2, ¶¶ 8, 9), and, on December 2, 2014, the North Carolina Court of Appeals concluded, by published opinion, that Petitioner “received a trial free from error, ” Gardner, 237 N.C.App. at 497, 769 S.E.2d at 197. Petitioner did not thereafter petition the North Carolina Supreme Court for discretionary review.[1]

         Petitioner, however, did file a pro se motion for appropriate relief (“MAR”) in the Rowan County Superior Court on October 6, 2015 (see Docket Entry 2, ¶ 9(g); Docket Entry 6-4 at 2 (order denying MAR giving date of MAR)), [2] which that court summarily denied on October 13, 2015 (Docket Entry 6-4 at 3).[3] Petitioner subsequently filed a pro se certiorari petition with the North Carolina Court of Appeals on December 8, 2015 (see Docket Entry 2, ¶ 11(a)(1)-(5); Docket Entry 6-5 at 2 (order denying certiorari petition giving date of petition)), [4] which that court denied on December 21, 2015 (Docket Entry 6-5 at 2; see also Docket Entry 2, ¶ 11(a)(7), (8)).[5]

         Petitioner subsequently signed his instant Petition, under penalty of perjury, and dated it for mailing on January 18, 2017 (see Docket Entry 2 at 10), and the Clerk of Court stamped and filed the Petition on January 27, 2017 (see id. at 1).[6]

         Respondent moved to dismiss the Petition on grounds of untimeliness (Docket Entries 5, 6), Petitioner responded in opposition (Docket Entry 8), and Respondent replied (Docket Entry 9). Following Respondent's reply, Petitioner filed two letters addressed to the Court providing further argument and evidence in support of his position that he filed the instant Petition in a timely manner. (Docket Entries 10, 11.)[7] 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) the “State [d]id in fact [e]rr in [a]dmitting GPS [d]ata and [r]eports” (Docket Entry 2 at 3); and (2) the “State violated [Petitioner's] Co[n]stitutional rights as Award [sic] of the State” (id. at 4).

         Discussion

         Respondent moves to dismiss the Petition as filed outside of the one-year limitations period, see 28 U.S.C. § 2244(d)(1). (See Docket Entry 6 at 3-9.) 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 ...

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