United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
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.
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).
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,  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).
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).
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).
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; (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.
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.
Motion to Amend Response
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.
Motion to Dismiss