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Mcphaul v. Hooks

United States District Court, W.D. North Carolina, Charlotte Division

November 1, 2017

DARRYL A. MCPHAUL, Petitioner,
v.
ERIK A. HOOKS, [1]Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS 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. 1).

         I. BACKGROUND

         Petitioner 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.

         On 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.)

         On June 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.

         Petitioner 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.)

         The instant § 2254 Petition was docketed in this Court on June 13, 2017.[2] 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.)

         II. STANDARD OF REVIEW

         The 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.

         III. DISCUSSION

         The 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).[3] The limitations period is tolled during the pendency of a properly filed state post-conviction action. 28 U.S.C. § 2244(d)(2).

         Judgment 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 § 2244(d)(1)(A).

         The 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 ...


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