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Rogers v. Hooks

United States District Court, M.D. North Carolina

July 10, 2018

DERRICK ANTHONY ROGERS, Petitioner,
v.
ERIK A. HOOKS, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge.

         Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 1.) Respondent has moved for summary judgment both on grounds of untimeliness and on the merits. (Docket Entries 4, 5.) For the reasons that follow, the Court should grant Respondent's Motion for Summary Judgment, and dismiss the Petition as untimely.

         I. Procedural History

         On June 2, 2015, in the Superior Court of Guilford County, Petitioner entered guilty pleas under North Carolina v. Alford, 400 U.S. 25 (1970), to attempt to obtain property by false pretenses, breaking or entering, larceny, conspiracy to obtain property by false pretenses, and two counts of forgery in cases 13 CRS 88646 through 88652. (See Docket Entry 1, ¶¶ 1, 2, 4-6; Docket Entry 5-2.) In accordance with the plea agreement (see Docket Entry 5-2), the trial court consolidated the offenses into one Class C felony judgment and sentenced Petitioner to 58 to 82 months' imprisonment (see Docket Entry 1, ¶ 3; Docket Entry 5-3.) Petitioner did not appeal.[1]

         On June 24, 2016, Petitioner filed a pro se motion for preparation of a stenographic transcript in the trial court(Docket Entry 5-4), which that court denied on August 16, 2016 (Docket Entry 5-5). Thereafter, on November 8, 2016, Petitioner filed a pro se motion for appropriate relief (“MAR”), as well as another motion for a stenographic transcript, in the trial court. (Docket Entry 5-6; see also Docket Entry 1, ¶¶ 10, 11(a)(1)-(6).) Petitioner subsequently filed an amended MAR (“AMAR”) on January 17, 2017. (Docket Entry 5-7.) On January 19, 2017, the trial court denied Petitioner's MAR, motion for stenographic transcript, and AMAR. (Docket Entry 5-8; see also Docket Entry 1, ¶ 11(a)(7).) Petitioner filed a pro se certiorari petition with the North Carolina Court of Appeals seeking review of his MAR and AMAR's denial on March 21, 2017 (Docket Entry 5-9; Docket Entry 1, ¶ 9(a)-(f)), which that court denied on April 6, 2017 (Docket Entry 5-11). Petitioner then filed a pro se petition for discretionary review (“PDR”) (Docket Entry 5-12), as well as a pro se motion to amend the PDR (Docket Entry 5-13) in the North Carolina Supreme Court on May 16 and 24, 2017, respectively. (See Docket Entry 1, ¶ 9(g).) That court dismissed the PDR on August 17, 2017. (Docket Entry 5-14.)

         Petitioner filed the instant Petition on December 12, 2017. (Docket Entry 1 at 15.)[2] Respondent moved for summary judgment both on grounds of untimeliness and on the merits (Docket Entries 4, 5), and Petitioner responded in opposition (Docket Entries 9, 10). For the reasons that follow, the Court should grant Respondent's instant Motion, because Petitioner submitted his Petition outside of the one-year limitations period.

         II. Grounds for Relief

         The Petition raises four grounds for relief:

(1) “[Petitioner's] Sixth Amendment [r]ight to effective assistance of counsel was violated” (Docket Entry 1, ¶ 12 (GROUND ONE));
(2) “[Petitioner's] [F]ourteenth Amendment rights of due process[] were violated by state officers, [p]rosecutor, and court” (id. ¶ 12 (GROUND TWO));
(3) the trial court “[l]ack[ed] [] [j]urisdiction due to [a] deficiently issued arrest warrant without probable cause, violating 4th Amendment” (id. ¶ 12 (GROUND THREE)); and
(4) “[Petitioner's] [F]ifth Amendment right was violated by [the] prosecutor submitting a En legis un-natural victim to [the] grand jury” (id. ¶ 12 (GROUND FOUR)).

         III. Discussion

         Respondent seeks summary judgment on the grounds that the Petition was filed outside of the one-year limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), see 28 U.S.C. § 2244(d)(1). (See Docket Entry 5 at 3-12.) In order to assess Respondent's statute of limitations argument, the Court must first determine when Petitioner's one-year ...


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