COMPTON v. ATTORNEY GENERAL OF THE STATE OF NORTH CAROLINA
Filing
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MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 03/17/2015. ORDERED that Petitioner's Motion [Doc. # 7 ] seeking an appointment of counsel is DENIED. FURTHER that Respondent's Motion to Dismiss [Doc. # 4 ] is GRANTED, that the claims raised in the Petition are DISMISSED, and that this action is DISMISSED. Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability is denied. (Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILL COMPTON,
Petitioner,
v.
FRANK PERRY,
Respondent.
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1:14CV328
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Petitioner Will Compton, a prisoner of the State of North Carolina, brings a Petition
[Doc. #1] seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which Respondent
opposes with a Motion to Dismiss [Doc. #4]. According to Petitioner, prison records show
that, on October 11, 2010, he pled guilty to the prison disciplinary offense of escape.
Petitioner denies being informed of this charge or pleading guilty to it. He claims that he
believed the charge was for possessing an object that could aid in escape. Nevertheless, the
charge appears in his prison records as an escape conviction. Petitioner attempted to appeal
the charge, but prison authorities informed him that he had no right to appeal due to the
guilty plea. On April 15, 2014, Petitioner signed and dated his Petition as having been
placed in the prison mailing system. The Court received the Petition on April 17, 2014.
After being ordered to answer, Respondent filed its Motion to Dismiss.
Petitioner’s Claims
Petitioner raises four claims for relief in his Petition, all of which relate to his
disciplinary conviction. First, he contends that the investigating officers did not follow
proper procedures in investigating the matter. (Petition, § 12, Ground One.) Second, he
claims that officers did not complete a property inventory connected to the investigation and
charge. (Id., Ground Two.) Third, he asserts prison officials did not accurately inform him
of the charge against him. (Id., Ground Three.) Finally, he alleges prison officials denied
him the right to learn the substance of the evidence against him and challenge that evidence.
(Id., Ground Four.)
Statute of Limitations
Respondent seeks dismissal of Petitioner’s claims on the ground that Petitioner filed
them outside of the one-year limitation period, 28 U.S.C. § 2244(d)(1). In order to assess
Respondent’s statute of limitation 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
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(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008) (emphasis added).
Here, Petitioner is not challenging a state court judgment and makes no claim of a
state-created impediment or a new constitutional right. Therefore, subparagraphs (A), (B),
and (C) do not apply.
Instead, subparagraph (D) controls and Petitioner’s one-year
limitation period as to those claims commenced on “the date on which the factual predicate
of the claim or claims presented could have been discovered through the exercise of due
diligence,” 28 U.S.C. § 2244(d)(1)(D). See generally Wade v. Robinson, 327 F.3d 328, 333
(4th Cir. 2003); Kimbrell v. Cockrell, 311 F.3d 361 (5th Cir. 2002).
Petitioner admits that he learned that the prison considered his conviction to be an
escape charge on October 11, 2010, when he appeared at a hearing to adjust his custody
status based on the disciplinary conviction. (Petition, §§ 6(b), 12, Ground Three.) All of his
claims existed at that time and he either knew of them or could have learned of their
existence through due diligence. Therefore, his year to file in this Court began to run on that
date and expired a year later on October 11, 2011, without Petitioner having made any filing
in this Court.1 In fact, he did not file his current Petition until April 15, 2014, or almost two
and a half years later. His Petition is well out of time.
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Petitioner did attempt to appeal the disciplinary conviction. That appeal could arguably affect the running
of the statute of limitations, because the denial of the administrative appeal could be treated as the trigger
under § 2244(d)(1)(D), or the administrative appeal could be a basis for equitable tolling, or the appeal could
be considered “other collateral review with respect to the pertinent . . . claim” under 28 U.S.C. § 2244(d)(2).
Cf. Dulworth v. Evans, 442 F.3d 1265, 1268-69 (10th Cir. 2006). However, the outcome of the case remains
unchanged. Petitioner’s appeal ended in a denial on November 14, 2011, or more than two years before he
filed his Petition in this Court. (See Petition, § 11(a)(8).)
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Petitioner responds to the statute of limitations argument by arguing that (1) the
statute of limitations stopped running because he notified prison officials of his claim that
his conviction was not for escape and that they had a continuing duty to investigate and (2)
because he never pled guilty to an escape charge, his conviction on an escape charge cannot
start the running of the statute of limitations. (Response Brief [Doc. #9] at 6, 9.) Both of
these arguments fail for the same reason. Petitioner knew as of October 11, 2010, of the
fact allegedly supporting his claim, which is that prison authorities considered him to have
pled guilty to an escape charge. Nothing in his current arguments changes that fact. He
could have brought his claims at that time, but inexplicably failed to do so for more than
three years. His claims are untimely and will be dismissed as such.
Also pending before the Court is a Motion [Doc. #7] filed by Petitioner in which he
requests time to respond to the Government’s Motion to Dismiss, and also requests an
appointment of counsel. To the extent Petitioner requested additional time, the Court has
allowed that request, and has considered the Response and Brief subsequently filed by
Petitioner. However, to the extent Petitioner requests appointment of counsel, no such
appointment is appropriate given the dismissal of this case based on the analysis set out
above.
There are no extraordinary circumstances that would warrant appointment of
counsel here. Therefore, the Motion will be denied.
IT IS THEREFORE ORDERED that Petitioner’s Motion [Doc. #7] seeking an
appointment of counsel is DENIED.
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IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss [Doc. #4] is
GRANTED, that the claims raised in the Petition are DISMISSED, and that this action is
DISMISSED.
Finding no substantial issue for appeal concerning the denial of a
constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate
of appealability is denied.
This, the 17th day of March, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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