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Noonsab v. Warden of Avery-Mitchell Correctional Institution

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

February 6, 2018

Somchai Noonsab, Petitioner,
v.
Warden of Avery-Mitchell Correctional Institution, Respondent.

          ORDER & MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge

         On July 7, 2016, petitioner Somchai Noonsab, a state inmate proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (D.E. 1). This matter is before the court upon respondent's motion for summary judgment (D.E. 35). Also before the court are a number of motions filed by Noonsab (D.E. 33, 43, 45, 52). For the following reasons, Noonsab's motions are denied, and the undersigned recommends that the district court grant respondent's motion for summary judgment.

         I. Background

         On November 18, 2013, Noonsab pleaded guilty to statutory rape, indecent liberties with a child, first degree kidnapping, and second degree sexual offense. Resp't. Ex. 1, D.E. 38-1. A judge sentenced Noonsab to a consolidated term of 192-291 months imprisonment. Resp't. Ex. 2, D.E. 38-2. He did not appeal. Likewise, Noonsab did not pursue state post-conviction proceedings until November 20, 2015. Resp't. Ex. 3, D.E. 38-3.

         Noonsab filed his petition on July 7, 2016. Pet at 25, D.E. 1. The court construed several subsequent filings as motions to amend, which were allowed. December 22, 2016 Order, D.E. 21. But the court noted that Noonsab's allegations were now distributed throughout at least seven docket entries. Id. Accordingly, the court directed Noonsab to particularize his extremely disjointed claims. Id. Rather than consolidate his claims into one pleading, as directed by the court, Noonsab responded to the particularization order with seven additional filings, including at least two more motions to amend (D.E. 25, 25, 26, 27, 28, 29, 30). On April 5, 2017, the court allowed these motions to amend and found that Noonsab's claims survived initial review (D.E. 31). But the court also noted that any further motions to amend would be strongly disfavored.

         Respondent filed a motion for summary judgment in May 2017, arguing that Noonsab's petition is untimely. In the interim, Noonsab continued his prolific filing. To the extent these filings are labeled as motions, the precise relief requested is unclear.

         II. Discussion

         A. Summary Judgment

         Summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and establishing an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must establish that there is a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

         Respondent argues that petitioner's § 2254 petition is time-barred. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires that any application for a writ of habeas corpus filed by a person in custody pursuant to the judgment of a state court be filed within one year of the latest of certain dates. 28 U.S.C. § 2244(d)(1); see Frasch v. Peguese, 414 F.3d 518, 521 (4th Cir. 2005). The limitation period begins running from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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