United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
a state inmate, petitions this court for a writ of habeas
corpus pro se pursuant to 28 U.S.C. § 2254. The
matter comes before the court on respondent's motion to
dismiss (DE 8) pursuant to Federal Rule of Civil Procedure
12(b)(6). The issues raised have been fully briefed
and are ripe for adjudication. For the following reasons, the
court grants respondent's motion.
January 29, 1996, petitioner, in the New Hanover County
Superior Court, petitioner pleaded guilty to second-degree
murder, and was sentenced to life in prison. (Pet. (DE 1) at
1). Petitioner did not appeal. (Id. at 2).
24, 2013, petitioner filed a pro se motion for
appropriate relief (“MAR”) in the New Hanover
County Superior Court, which was denied on August 21, 2013.
(Resp't. Ex. 4 (DE 9-5)). Petitioner subsequently filed a
petition for a writ of certiorari in the North Carolina Court
of Appeals, which was denied on October 21, 2013.
(Resp't. Ex. 7 (DE 9-8)). On December 18, 2013, the North
Carolina Supreme Court dismissed petitioner's petition
for discretionary review. (Resp't. Ex. 9 (DE 9-10). Next,
petitioner filed a petition for writ of mandamus in the North
Carolina Court of Appeals, which was denied on June 29, 2016.
(Pet'r. Ex. (DE 1-1) at 2).
13, 2016,  petitioner filed the instant petition for
a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Respondent filed the instant motion to
dismiss on March 23, 2017, and petitioner has responded (DE
Motion to Dismiss
Standard of Review
motion to dismiss under Rule 12(b)(6) determines only whether
a claim is stated; “it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). A claim is
stated if the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
evaluating whether a claim is stated, “[the] court
accepts all well-pled facts as true and construes these facts
in the light most favorable to the [petitioner], ” but
does not consider “legal conclusions, elements of a
cause of action, . . . bare assertions devoid of further
factual enhancement[, ] . . . unwarranted inferences,
unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs. com, Inc., 591 F.3d
250, 255 (4th Cir. 2009) (citations omitted). In other words,
this plausibility standard requires a petitioner to
articulate facts, that, when accepted as true, demonstrate
that the petitioner has stated a claim that makes it
plausible he is entitled to relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing
Iqbal, 556 U.S. at 678, and Twombly, 550
U.S. at 557). Moreover, a court may take judicial notice of
public records without converting a motion to dismiss into a
motion for summary judgment. See Fed.R.Evid. 201;
Tellabs, Inc. v. Makor Issues & Rights. Ltd.,
551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
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