United States District Court, W.D. North Carolina, Charlotte Division
DARRYL A. MCPHAUL, Petitioner,
ERIK A. HOOKS, Respondent.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on initial review of
Petitioner Darryl A. McPhaul's pro se Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No.
is a prisoner of the State of North Carolina who, on February
4, 2014, pled guilty in Mecklenburg County Superior Court to
accessory after the fact to first-degree murder. See
State's Resp. to Pet. for Writ of Cert. ¶ 1,
State v. McPhaul No. PI6-799, 2016 WL 6605281 ( N.C.
Ct. App. filed Oct. 31, 2016). Petitioner was sentenced to a
minimum 168, maximum 211 months in prison. Id. He
did not file a direct appeal.
March 24, 2014, the trial court issued an order denying
Petitioner's first motion for appropriate relief
("MAR") for failure to serve the Mecklenburg County
District Attorney with a copy of the MAR (Order Den. MAR,
Doc. No. 1-1 at 131), as required by N.C. Gen. Stat. §
15A- 1420(a)(3) (citing N.C. Gen. Stat. § 15A-951). On
July 22, 2014, the trial court issued an order denying
Petitioner's second MAR. See State's Resp. to Pet.
for Cert., 2016 WL 6605281 at ¶ 3. From the instant
habeas Petition, it appears the second MAR was denied for the
same violation of the statutorily-required filing and service
of process rules. (Pet. ¶ 18, Doc. No. 1.)
30, 2015, Petitioner filed a third MAR. See State's Resp.
to Pet. for Writ of Cert., 2016 WL 6605281 at ¶ 4.
Petitioner argued in the MAR that his guilty plea was not
made knowingly, voluntarily, and intelligently because
"his attorney had promised him a sentence [of] 101-128
months." Id. at *5. The trial court issued an
order on August 31, 2015, denying the MAR on the merits. See
id ¶ 4, *4.
filed a petition for writ of certiorari in the North Carolina
Court of Appeals on October 21, 2016, seeking review of the
trial court's denial of his third MAR. See
Id. at ¶ 5. The Court of Appeals denied the
petition on November 2, 2016. (Order Den. Cert. Pet., Doc.
No. 1-1 at 93.) Thereafter, Petitioner filed certiorari
petition in the North Carolina Supreme Court, which was
dismissed on January 26, 2017. (Order Dismiss. Cert. Pet.,
Doc. No. 1-1 at 95.)
instant § 2254 Petition was docketed in this Court on
June 13, 2017. Petitioner raises two claims of error with
respect to his sentence: 1) that he was sentenced to a term
of prison greater than the parties had agreed to in his plea
deal; and 2) that the term imposed was itself incorrect under
the North Carolina Structured Sentencing Act guidelines.
(Pet. 5, 7.) Petitioner also raises several ineffective
assistance of counsel claims and claims related to the state
MAR proceedings. (Pet. 8, 10.)
STANDARD OF REVIEW
Court is guided by Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, which directs
district courts to dismiss habeas petitions when it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief. Rule 4, 28 U.S.C A.
foil. § 2254. In conducting its review under Rule 4, the
court "has the power to raise affirmative defenses sua
sponte, " including a statute of limitations defense
under 28 U.S.C. § 2244(d). Hill v. Braxton. 277
F.3d 701, 706 (4th Cir. 2002). The court may dismiss a
petition as untimely under Rule 4, however, only if it is
clear that the petition is untimely, and the petitioner had
notice of the statute of limitations and addressed the issue.
Id. at 706-707.
Antiterrorism and Effective Death Penalty Act of 1996
provides a statute of limitations for § 2254 petitions
by a person in custody pursuant to a state court judgment. 28
U.S.C. § 2244(d)(1). The petition must be filed within
one year of "the date on which the judgment became final
by the conclusion of direct review or the expiration of the
time for seeking such review." §
2244(d)(1)(A). The limitations period is tolled during
the pendency of a properly filed state post-conviction
action. 28 U.S.C. § 2244(d)(2).
was entered in this case on February 4, 2014, when Petitioner
was sentenced. To the extent he retained the right to a
direct appeal subsequent to his guilty plea, Petitioner had
14 days to file a notice of appeal in the North Carolina
Court of Appeals. See N.C. R. App. P. 4(a)(2). Because he did
not file a direct appeal, Petitioner's judgment became
final on or about February 18, 2014, when the time for
seeking direct review expired. See §
federal statute of limitations then ran for 365 days until it
fully expired on or about February 18, 2015. Although the
limitations period is tolled during the pendency of a
properly filed state post-conviction action, see §
2244(d)(2), Petitioner's first two MARs were not properly
filed, see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (A
post-conviction action "is 'properly filed' when
its delivery and acceptance are in compliance with the
applicable laws and rules governing filings."). As
explained previously, Petitioner failed to follow ...