CROMARTIE v. NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 11/18/2021, that Respondents Motion to Dismiss [Doc. # 13 be granted, that the claims raised in th e Petition [Doc. # 2 be dismissed, that this action be dismissed, and that, there being no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability be denied.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHRISTOPHER DANIEL CROMARTIE, )
NORTH CAROLINA DEPARTMENT
OF PUBLIC SAFETY,
MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Petitioner Christopher Daniel Cromartie, Jr., a prisoner of the State of North Carolina,
brings a Petition [Doc. #2] seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
which Respondent opposes with a Motion to Dismiss [Doc. #13]. According to Petitioner,
he was convicted on August 31, 2017 of the prison disciplinary offenses of lock tampering,
threatening to harm or injure staff, and disobeying an order.
Petitioner appealed the
convictions, but prison authorities upheld the convictions, with the final decision being issued
by the North Carolina Department of Public Safety on October 31, 2017. (Respondent’s Brief
[Doc. #14], Ex. 1 at 1.) On April 21, 2020, Petitioner signed and dated his current Petition as
having been placed in the prison mailing system. The Court received the Petition on April 24,
2020. After being ordered to answer, Respondent filed its Motion to Dismiss.
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Petitioner raises what are set out as four claims for relief in his Petition, all of which
relate to his disciplinary conviction. First, he contends that he “received statements from
witnesses on [the] scene of the alleged allegations” and that the statements were “NOT
included with the original document(s) [or] orally or verbally recorded.” (Petitio n, § 12,
Ground One.) Second, he claims that the officer investigating the infractions committed
perjury and did not include video footage. (Id., Ground Two.) Third, Petitioner requests
video footage of the incident and asserts that it will show his innocence. (Id., Ground Three.)
Finally, Petitioner requests the reimbursement of costs related to the convictions and the
restoration of good time points and credits. (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;
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(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 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 obviously knew or could have known through the exercise of due diligence
of his conviction, what evidence was or was not used, and that the conviction had been upheld
by on or about October 31, 2017. This includes any facts related to video footag e, witness
statements, and officer statements. Therefore, his year to file in this Court began to run on
that date at the latest and expired a year later on October 31, 2018, without Petitioner having
made any filing in this Court regarding these convictions.1 In fact, he did not file his current
Petition until April 21, 2020, or almost a year and a half later. The Petition is well out of time.
Petitioner makes a conclusory allegation that he received “new” evidence in the form of
Petitioner made filings in several other cases, including some related to separate disciplinary convictions, but
did not make any prior filing involving the set of disciplinary convictions challenged in the instant action.
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witness statements, but does not provide those statements, explain them, or explain why he
could not have discovered them through the exercise of due diligence at the time of his
conviction or at any other point that would affect the beginning of his time to file in this Court.
His claims are untimely and should be dismissed as such. Therefore, this action should be
dismissed in its entirety.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion to Dismiss [Doc.
#13] be granted, that the claims raised in the Petition [Doc. #2] be dismissed, that this action
be dismissed, and that, there being no substantial issue for appeal concerning the denial of a
constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of
appealability be denied.
This, the 18th day of November, 2021.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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