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Cook v. Solomon

United States District Court, E.D. North Carolina, Western Division

June 1, 2017

MICHAEL ORLANDO COOK, Petitioner,
v.
GEORGE T. SOLOMON, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter comes before the court on respondent's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 15), which was fully briefed. Also before the court is petitioner's motion to amend his response to respondent's motion to dismiss (DE 20). Respondent did not respond to petitioner's motion. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants both motions.

         STATEMENT OF CASE

         On February 13, 2007, petitioner was convicted in the Cumberland County Superior Court of the following: (1) first-degree kidnaping; (2) five counts of second-degree kidnaping; (3) five counts of robbery with a dangerous weapon; (4) assault with a deadly weapon with the intent to kill inflicting serious injury; (5) felony speeding to elude arrest; and (6) resisting, delaying, or obstructing a public officer. See State v. Cook, No. COA07-1096, 2008 WL 2096786, at *1 (2008). The superior court arrested judgment on the charge of resisting arrest, delaying, or obstructing a public officer. The superior court then sentenced petitioner to an aggregate term of 733-1690 months imprisonment. (Resp't's Mem. Ex. 4, p. 10).

         Petitioner subsequently filed a notice of appeal to the North Carolina Court of Appeals. Cook, 2008 WL 2096786, at *1. On May 20, 2008, the court of appeals issued an opinion finding no error, and the North Carolina Supreme Court then denied petitioner's petition for a writ of discretionary review on August 28, 2008. Id.; State v. Cook, 666 S.E.2d 761 (2008); (Resp't's Mem. Ex. 2). On September 5, 2014, [1] petitioner filed a pro se motion for appropriate relief (“MAR”) in the superior court, which was summarily denied on October 24, 2014. (Resp't's Mem. Exs. 6, 7). On December 1, 2014, petitioner filed a pro se petition for a writ of certiorari with the North Carolina Court of Appeals, which was denied on December 17, 2014. (Id. Ex. 8, 10). On January 9, 2015, petitioner filed a pro se petition for discretionary review in the supreme court seeking review of the court of appeal's December 17, 2014, order. (Id. Ex. 11). On March 5, 2015, the supreme court dismissed the petition for discretionary review. (Id. Ex. 12).

         On March 25, 2015, petitioner filed a pro se pleading captioned “Motion to Locate and Preserve Evidence and Motion for Post-Conviction [deoxyribonucleic acid (“DNA”)] Testing” in the superior court. (Id. Ex. 13). On October 28, 2015, the superior court denied petitioner's motion, and stated that “the Clerk of Superior Court has checked the evidence that was retained per Statute and has reported that there is no biological evidence being preserved.” (Id. Ex. 14). The superior court further stated that “[t]he Fayetteville Police Department has reported that all evidence was retained by the Court following trial.” (Id.) While petitioner's motion for DNA testing was pending, he filed a pro se “Motion to Amend and Motion for Appropriate Relief” in the superior court on October 22, 2015. (Id. Ex. 15). The motion was denied on December 1, 2015. (Id. Ex. 16). In the interim, petitioner filed two motions in the court of appeals-a pro se petition for a writ of certiorari on November 4, 2015, and a pro se motion to amend his certiorari petition on December 14, 2015. (Id. Exs. 17, 18). The court of appeals then denied petitioner certiorari petition on January 4, 2016. (Id. Ex. 20). In the interim, petitioner filed another pro se petition for a writ of certiorari in the court of appeals on December 18, 2015, which was denied on January 13, 2016. (Id. Exs. 21, 23).

         On January 20, 2016, petitioner filed a pro se petition for discretionary review, petition for a writ of certiorari, and a subpoena duces tecum in the supreme court. (Id. Exs. 24, 25, 26). On February 8, 2016, petitioner also filed a pro se motion to amend his petition for discretionary review in the supreme court. (Id. Ex. 27). On March 17, 2016, the supreme court entered orders dismissing petitioner's petition for discretionary review, dismissing the subpoena duces tecum, allowing the motion to amend, and dismissing the amendment. (Id. Ex. 28).

         On May 5, 2016, petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raised the following claims in his § 2254 petition: (1) seven “trace tapings” were not tested for DNA; (2) petitioner had an alibi, yet law enforcement focused on him as a suspect;[2] (3) the photo array from which petitioner was identified was impermissibly suggestive; (4) a state's witness admitted at trial that several items collected from a victim's Toyota automobile were never tested for fingerprints or DNA; and (5) petitioner was not appointed counsel in conjunction with his post-conviction motion for DNA testing.

         Respondent subsequently filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing that petitioner's habeas petition should be dismissed because it was filed outside of the statute of limitations, and therefore is time-barred. Petitioner responded and subsequently filed a motion to amend his response. Respondent did not respond to petitioner's motion.

         DISCUSSION

         A. Motion to Amend Response

         Petitioner seeks leave of court to amend his response to respondent's motion to dismiss. For good cause shown, petitioner's motion is GRANTED, and the court will consider petitioner's supplemental response.

         B. Motion to Dismiss

         1. ...


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