United States District Court, E.D. North Carolina, Western Division
W. FLANARAN, UNITED STATES DISTRICT JUDGE.
a state inmate proceeding pro se, filed this petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
matter is before the court on respondent's motion to
dismiss (DE 15). The motion was fully briefed and thus the
issues raised are ripe for decision. For the reasons stated
below, the court grants respondent's motion and dismisses
the petition as time barred.
August 29, 2012, a jury convicted petitioner of four counts
of discharging a firearm into an occupied vehicle, and the
state court sentenced her to four terms of 66-89 months'
imprisonment. (Pet. (DE 1) ¶¶ 2, 5; J. &
Commitment (DE 16-7)). The state court ordered the sentences
on the first two counts to run consecutively, and the
sentences on the third and fourth two counts to run
consecutively. (J. & Commitment (DE 16-7). Petitioner
appealed her conviction and sentence. On October 15, 2013,
the North Carolina Court of Appeals affirmed her conviction
and sentence, but remanded for correction of a clerical error
in the original judgment. State v. Garner, No.
COA13-182, 2013 WL 5629146 ( N.C. Ct. App. Oct. 15, 2013)
(unpublished). Petitioner did not file a petition for
discretionary review seeking review of the court of
appeals' decision. On December 4, 2013, the state court
entered amended judgment and commitment order correcting the
clerical error. (J. & Commitment (DE 16-7). Petitioner
did not file appeal after entry of the amended judgment. On
June 26, 2017, however, petitioner mailed correspondence to
the resident superior court judge in Wayne County, North
Carolina, arguing that her conviction and sentence should
vacated based on various constitutional violations.
signed the instant federal habeas petition on October 1,
2017, and filed amended petition on October 16, 2017.
Petitioner alleges the following claims for relief: 1) her
constitutional rights were violated because she was placed in
handcuffs before she was charged with a crime, the officers
did not provide a Miranda warning before taking her
into custody, she was taken into custody and locked in a
room, the trial court denied her request to have a witness
testify, the State's witness changed his testimony during
trial, the trial court denied her motion to dismiss, she was
not given a bond after her arrest, she was compelled to
consent to a search of her car, and the trial court informed
her that if she did not accept a plea bargain she would
receive the maximum possible sentence; 2) ineffective
assistance of counsel because trial counsel failed to address
the issues set forth above; 3) she was convicted of four
counts of discharging a firearm into an occupied vehicle
despite no eyewitnesses and that the State did not conduct
ballistic analyses to confirm four shots were fired; and 4)
her original judgment and commitment order erroneously ran
her sentence on count three consecutively to the sentences on
the remaining counts, resulting in a maximum potential term
of imprisonment of 22 years. (Pet. (DE 4) ¶ 12).
18, 2018, respondent filed the instant motion to dismiss,
arguing that the petition is time barred. Petitioner timely
filed response in opposition.
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 petition 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
a federal habeas action, the court may consider a statute of
limitations defense raised by respondent in a Rule 12(b)(6)
motion if the petitioner has been afforded an opportunity to
demonstrate the petition is timely. See Hill v.
Braxton, 277 F.3d 701, 706-07 (4th Cir. 2002).
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a petition for writ of habeas corpus
by a person in custody pursuant to the judgment of a state
court must be filed within one year. 28 U.S.C. §
2244(d)(1). The period begins to run 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
. . . is removed . . .;
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