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Cooper v. Poole

United States District Court, M.D. North Carolina

February 21, 2019

GREGORY COOPER, Petitioner,
v.
KATTY POOLE, Respondent.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER 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 2.) Respondent has filed a motion for summary judgment (Docket Entry 6), a brief (Docket Entry 7), and an answer (Docket Entry 5). Petitioner, in turn, filed a response.[1] (Docket Entry 9.) This matter is now ready for a ruling.

         Background

         In early May of 2014, in the Superior Court of Moore County, Petitioner pled guilty to possession of a firearm by a felon, and was sentenced to 17-30 months of imprisonment, in case number 12 CRS 51932. (Docket Entry 7, Ex. 2 at pdf pages 11-14, 18-19.) Petitioner was also tried for first-degree murder, which resulted in a mistrial on May 9, 2014. (Id. at 20.) Petitioner was convicted after trial by jury of second-degree murder on January 9, 2015 and was sentenced to 189-239 months of imprisonment in case number 12 CRS 51933. (Id. at 79, 83-84.) Petitioner appealed and the North Carolina Court of Appeals remanded for a new sentencing hearing. State v. Cooper, 245 N.C.App. 567 (2016) (concluding that “it was improper for the trial court to use the possession of a firearm by a felony conviction entered 9 May 2014 in calculating his prior record level for sentencing on the second-degree murder conviction because the prior charge had been joined for trial with the murder and attempted murder charges”). Petitioner was resentenced to 164-209 months of imprisonment and judgment was entered on March 7, 2016. (Docket Entry 7, Ex. 6.) On July 24, 2017, Petitioner filed a motion for appropriate relief (“MAR”) in the Superior Court of Moore County. (Docket Entry 2 at pdf pages 16-19.) On August 30, 2017, Petitioner filed a motion for summary judgment regarding the MAR in that same court. (Docket Entry 7, Ex. 7.) On August 2, 2018, the MAR and motion for summary judgment were denied. (Id., Ex. 8.) On March 14, 2018, Petitioner filed a petition for a writ of certiorari in the North Carolina Court of Appeals (id., Ex. 9), which was denied on March 16, 2018 (id., Ex. 10). On March 28, 2018, Petitioner filed a MAR in the North Carolina Court of Appeals (id., Ex. 11), which was dismissed on April 3, 2018 (id., Ex. 12). On April 12, 2018, in that same court, Petitioner filed an “Objection to Clerk's Court Orders Clear Statement of Fact, ” which was denied on April 13, 2018. (Id., Ex. 13.) Petitioner executed the instant federal habeas petition on June 4, 2018 and filed it with the Court on June 11, 2018. (Docket Entry 2.)

         Petitioner's Claims

         Petitioner contends: (1) his Sixth Amendment rights were violated because he was stopped from confronting his accusers with other testimony; (2) his Fifth Amendment rights were violated because he was compelled not to testify by his lawyer threatening to withdraw if he testified; and (3) if his prior record level had been correct he would have taken a plea for 5-7 years. (See Id. § 12, Grounds 1-2.)

         Discussion I.

         The Petition is time-barred.

         Respondent requests dismissal claiming the Petition was filed beyond the one-year limitation period imposed by 28 U.S.C. § 2244(d)(1). (Docket Entry 7 at 5-12.) In order to assess this argument, the Court first must determine when Petitioner's one-year period to file his § 2254 petition commenced. In this regard, the United States Court of Appeals for the Fourth Circuit has explained that:

Under § 2244(d)(1)(A)-(D), the one-year limitation period begins to run from the latest of several potential starting dates:
(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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