Bingham v. State of North Carolina

Filing 5

ORDER: Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 Document 1 is DISMISSED WITH PREJUDICE as untimely and procedurally barred under 28 U.S.C. § 2244(d)(1)(A). The Court declines to issue a Certificate of Appealability. Signed by Chief Judge Martin Reidinger on 1/7/2021. (Pro se litigant served by US Mail.)(rhf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:20-cv-00190-MR

DUSTIN BINGHAM,

)
)
Petitioner,
)
)
vs.
)
)
ERIK A. HOOKS, Secretary of
)
Department of Public Safety,
)
)
Respondent.
)
________________________________ )

ORDER

THIS MATTER is before the Court on initial review of the pro se
Petitioner’s § 2254 Petition for Writ of Habeas Corpus [Doc. 1].
I.

BACKGROUND
Dustin Bingham (the “Petitioner”) is a prisoner of the State of North

Carolina who pled guilty on July 5, 2018 in Gaston County Superior Court to
one count of robbery with firearms or other dangerous weapons. [Doc. 1 at
1]. The Petitioner was sentenced to 84 to 113 months’ imprisonment. [Id.].
The Petitioner did not appeal his sentence to the North Carolina Court of
Appeals. [Id. at 2].

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On or around March 24, 2020, the Petitioner filed the present habeas
petition in this Court. [Id.].1 On May 28, 2020, the Petitioner filed a request
to proceed in forma pauperis. [Doc. 3].
On December 1, 2020, the Court entered an Order finding that the
Petitioner’s petition was subject to being dismissed as untimely unless the
Petitioner can demonstrate that it is subject to statutory tolling under §
2244(d)(1)(B), (C), or (D), or that equitable tolling should otherwise apply.
[Doc. 4].

The Court allowed the Petitioner 21 days to file a document

explaining why his petition should not be dismissed as untimely. [Id.]. More
than 21 days have now passed, and the Petitioner has not responded to the
Court’s Order.
II.

DISCUSSION
The Petitioner has received notice of the statute of limitations in §

2244(d)(1)(A) and has received an opportunity to address the statute of
limitations issue. [Doc. 4]; see Hill v. Braxton, 277 F.3d 701, 706-07 (4th Cir.
2002). Having received that opportunity, the Petitioner has failed to show

1

Under Houston v. Lack, an inmate's pleading is filed at the time he or she delivers it to
the prison authorities for forwarding to the court clerk. 487 U.S. 266, 270 (1988). Here,
the Petitioner fails to state the particular date that he placed the petition in the prison mail
system. The envelope in which the petition was mailed, however, is post-marked March
24, 2020. [Doc. 1-1]. Accordingly, the Court finds that the petition was filed on or around
March 24, 2020.
2

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that any of the other provisions in § 2244(d)(1) apply to his habeas petition
or that he is entitled to equitable tolling. As such, the petition is untimely
under §§ 2244(d)(1)(A) and must be dismissed.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,
the Court declines to issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. §
2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to
satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the constitutional claims debatable or
wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when relief
is denied on procedural grounds, a petitioner must establish both that the
correctness of the dispositive procedural ruling is debatable, and that the
petition states a debatably valid claim of the denial of a constitutional right).
IT IS, THEREFORE, ORDERED that the Petitioner's Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus [Doc. 1] is DISMISSED WITH
PREJUDICE as untimely and procedurally barred under 28 U.S.C. §
2244(d)(1)(A).
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases.
3

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IT IS SO ORDERED.

Signed: January 7, 2021

4

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