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Cruz v. Marshall

United States District Court, M.D. North Carolina

September 20, 2017

ALBERTO MARQUEZ CRUZ, Petitioner,
v.
BOB W. MARSHALL and FRANK L. PERRY, Respondents.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., DISTRICT JUDGE

         Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 3.) This matter now comes before the court upon remand from the United States Court of Appeals for the Fourth Circuit. Cruz v. Marshall, 673 F. App'x 296 (4th Cir. 2016) (unpublished). Pursuant to that remand, the circuit court directed this court to review de novo the Memorandum Opinion and Recommendation (“Recommendation”) of United States Magistrate Judge L. Patrick Auld and Petitioner's objections to that Recommendation, see Cruz, 673 F. App'x at 299. This court will set out its de novo analysis herein below. Nevertheless, before this court completed its de novo review as directed, the State filed a motion for summary judgment (Doc. 28), and Petitioner has responded (Doc. 35). That motion is ripe for ruling. Rather than refer the motion for summary judgment to the Magistrate Judge in accordance with this court's case assignment order, this court will also address the State's motion for summary judgment.

         I. PROCEDURAL HISTORY

         On January 10, 2011, in the Superior Court of Guilford County, Petitioner pled guilty to conspiracy to traffic in more than 400 grams of cocaine, trafficking by possessing more than 400 grams of cocaine, trafficking by transporting more than 400 grams of cocaine, trafficking by delivering more than 400 grams of cocaine, trafficking by transporting 28-200 grams of cocaine, trafficking by sale and delivery of 28-200 grams of cocaine, and trafficking by possessing 28-200 grams of cocaine, in cases 10CRS084147-150 and 10CRS084152-153, and received a consolidated judgment with a mandatory term of 175 to 219 months in prison. (See Petition for Writ of Habeas Corpus (“Petition”) (Doc. 3) ¶¶ 1-6; Doc. 3-2 at 41-43.)[1] He did not appeal. (See Petition (Doc. 3) ¶ 8.)

         On March 8, 2013, Petitioner mailed a Motion for Appropriate Relief (“MAR”) to the trial court (see Petition (Doc. 3) at 23; Doc. 3-1 at 11-15; Doc. 3-2 at 1-22), which that court denied on May 21, 2013 (see Petition (Doc. 3) ¶ 11(a); Doc. 3-1 at 6-10). On August 14, 2013, Petitioner filed a Motion for Reconsideration of the MAR (see Petition (Doc. 3) ¶ 11(b); Id. at 27-31; Doc. 3-1 at 1-5), which the trial court denied on August 23, 2013 (see Petition (Doc. 3) ¶ 11(b); Id. at 26). Petitioner sought certiorari review with the North Carolina Court of Appeals. (See Id. ¶ 11(c); Id. at 21-25.) On October 24, 2013, the North Carolina Court of Appeals denied that petition. (See Id. ¶ 11(c); Id. at 20.)

         Petitioner then signed the instant Petition, under penalty of perjury, and dated it for mailing on December 4, 2013 (see Petition (Doc. 3) at 11), and the court stamped and filed the Petition on December 9, 2013 (id. at 1).[2] Respondents moved to dismiss the Petition on statute of limitation grounds, (Docs. 6, 7), and the Magistrate Judge issued a Memorandum Opinion and Recommendation that the court grant Respondents' motion and dismiss the Petition as untimely. (Recommendation (Doc. 12).)

         Petitioner filed objections to the Recommendation (Pet'r's Objs. (Doc. 14)), in which he supplemented his argument with additional factual allegations regarding the timeliness of his Petition (see Id. at 3-5). The court (per the Honorable James A. Beaty, Jr.) entered an Order and Judgment adopting the Recommendation and dismissing the Petition as untimely. (Docs. 15, 16.)

         Petitioner appealed (Doc. 17), and the United States Court of Appeals for the Fourth Circuit appointed Petitioner counsel (Doc. 21) and granted him a certificate of appealability on the issue of the timeliness of his Brady claim (Doc. 22).[3] The Fourth Circuit vacated the court's Judgment based on the following reasoning:

The magistrate judge dismissed as untimely the ineffective assistance of counsel and Brady claims because Petitioner failed to include specific dates when he learned facts critical to these claims. Petitioner responded by providing those dates [in his objections]. With the new information, the [Report & Recommendation] no longer included the basis to dismiss Petitioner's Brady or ineffective assistance of counsel claims. Therefore, the district court should have explained its decision that the petition was untimely so as to permit meaningful appellate review.
For the foregoing reasons, we vacate and remand for further proceedings. Specifically, we direct the district court to review de novo the [Report & Recommendation], including Petitioner's objections, and provide sufficient explanation for its ruling, whatever that may be.

Cruz, 673 F. App'x at 299.

         The Magistrate Judge granted Respondents' motion to expand the record to include the stenographic transcript of Petitioner's plea proceedings (Docs. 25, 26), motion for leave to exceed the page limit in Respondents' summary judgment brief (Doc. 31), and motion to amend/correct Respondents' brief in support of the summary judgment motion (Docs. 32, 33). (Text Order dated June 30, 2017.) Remaining for adjudication is Respondents' for summary judgment (Doc. 28), to which Petitioner has responded in opposition. (Doc. 35.)

         II. DISCUSSION

         A. Objections

         In the Recommendation, the Magistrate Judge analyzed the timeliness of Petitioner's ineffective assistance of counsel and Brady claims under 28 U.S.C. § 2244(d)(1)(D), and recommended dismissal ...


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