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Garner v. Hooks

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

March 5, 2019

BRENDA WILLIAMS GARNER, Petitioner,
v.
ERIK A. HOOKS, et al., Respondents.[1]

          ORDER

          LOUISE W. FLANARAN, UNITED STATES DISTRICT JUDGE.

         Petitioner, 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.

         BACKGROUND

         On 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 Oct. 15, 2013) (unpublished).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.

         Petitioner 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.[2] (Pet. (DE 4) ¶ 12).

         On June 18, 2018, respondent filed the instant motion to dismiss, arguing that the petition is time barred. Petitioner timely filed response in opposition.

         DISCUSSION

         A. Standard of Review

         A 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).

         B. Analysis

         Under 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 several 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 . . . 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 ...

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