Benfield v. Perry et al

Filing 6

ORDER granting 4 MOTION (Sealed - Participants) to Proceed in forma pauperis. Petitioner shall, within 21 days from entrance of this Order, file a response explaining why his § 2254 Petition should not be dismissed as untimely, plus an additional 3 days if served by mail. Signed by Chief Judge Frank D. Whitney on 5/31/2017. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17cv21-FDW
JEREMY LYNN BENFIELD,
aka Jeremy Lynn Cooper,

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)
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Petitioner,
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vs.
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FRANK L. PERRY, et al.,
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Respondent.
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____________________________________)

ORDER

THIS MATTER is before the Court upon Petitioner Jeremy Lynn Benfield’s pro se
Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1), and his
second Motion to proceed in forma pauperis (Doc. No. 4).
I.

PROCEDURAL HISTORY
Petitioner is a prisoner of the State of North Carolina who, on April 14, 2000, was

convicted by a jury in Iredell County Superior Court of assault with a deadly weapon with intent
to kill inflicting serious injury, assault with a deadly weapon inflicting serious injury, and injury
to personal property. He received consecutive sentences of 116 to 149 months imprisonment, 34
to 50 months imprisonment, and 45 days imprisonment, respectively. (Pet. 1-2, Doc. No. 1.)
Petitioner’s direct appeal was denied by the North Carolina Court of Appeals on
December 4, 2001. See State v. Benfield, No. COA00-1236, 558 S.E.2d 262, slip op. at 1 (N.C.
Ct. App. Dec. 4, 2001) (unpublished). He sought discretionary review in the North Carolina
Supreme Court on January 19, 2016. See State’s Resp. to Cert. Pet. *2, State v. Benfield, No.
P16-682, 2016 WL 5248026 (N.C. Ct. App. filed Sept. 19, 2016). His petition was denied on
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March 17, 2016. State v. Benfield, No. 22P16-1, 782 S.E.2d 736 (N.C. 2016) (Mem).
According to Petitioner, he filed a Motion for Appropriate Relief (“MAR”) in Iredell
County Superior Court on July 13, 2016, which was denied on August 15, 2016. (Pet. 3.) On
September 6, 2016, Petitioner filed a petition for writ of certiorari in the North Carolina Court of
Appeals, seeking review of the denial of his MAR. (Pet. 4.) It was denied on September 22,
2016. (Pet. 5.)
Petitioner’s § 2254 habeas Petition was received in this Court on January 20, 2017.1 (IFP
Mot. 1, Doc. No. 2.) He raises the following grounds for relief: 1) the trial court violated his
right to due process by sentencing him to consecutive sentences outside the mitigated range; 2)
the sentence imposed was grossly disproportionate; 3) trial counsel rendered ineffective
assistance; 4) a new North Carolina sentencing law should be applied retroactively to Petitioner’s
judgment; 5) the trial court incorrectly calculated Petitioner’s prior criminal record level at
sentencing; 6) the trial court incorrectly calculated the amount of jail credit Petitioner was due;
7) the trial court erred in denying Petitioner’s motion to dismiss; and 8) the trial court erred in
refusing to give a jury instruction on voluntary intoxication and intent to kill. (Pet. 5-15.)
II.

STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 provides a statute of

limitations for § 2254 petitions by a person in custody pursuant to a state court judgment. 28

Under the prison mailbox rule, a pro-se prisoner’s habeas petition is deemed “filed” when he relinquishes control
of it to the prison mailroom authorities.” United States v. McNeill, 523 F. App’x 979, 983 (4th Cir. 2013)
(unpublished). In this case, Petitioner swore under penalty of perjury that he deposited his habeas Petition in the
prison mail system on October 23, 2016. (Pet. 19, Doc. No. 1.) The Clerk of Court’s Office, however, received
both the Petition and Petitioner’s first Motion to proceed in forma pauperis on January 20, 2017 (IFP Mot. 1, Doc.
No. 2), and the envelope in which they were mailed bears a January 17, 2017 North Carolina Department of Public
Safety date stamp. (Doc. No. 1-2.) Petitioner was given an opportunity to provide evidence from the prison mail log
that he, in fact, deposited his Petition in the mail system on October 23, 2016 (Order, Doc. No. 3), but he declined.
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U.S.C. § 2244(d)(1). The petition must be filed within one year of 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 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
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
Id. The limitations period is tolled during the pendency of a properly filed state postconviction action. 28 U.S.C. § 2244(d)(2).
Judgment was entered in this case on April 14, 2000, when Petitioner was sentenced. His
direct appeal was denied by the North Carolina Court of Appeals on December 4, 2001.
Petitioner then had thirty-five days, up to and including January 8, 2002, to file a petition for
discretionary review (“PDR”) in the North Carolina Supreme Court. See N.C. R. App. P. 15(b)
(“A petition for review following determination by the Court of Appeals shall be . . . filed and
served within fifteen days after the mandate of the Court of Appeals has been issued to the trial
tribunal.”); N.C. R. App. P. 32(b) (“Unless a court orders otherwise, its clerk shall enter
judgment and issue the mandate of the court twenty days after the written opinion of the court
has been filed with the clerk.”). Because he did not file a PDR within those thirty-five days,
Petitioner’s conviction became final on or about January 8, 2002, when the time for seeking that
review expired. See § 2244(d)(1)(A).
The federal statute of limitations then ran for 365 days until it fully expired on or about
January 8, 2003, more than 14 years before Petitioner filed the instant § 2254 habeas Petition.
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Thus, the Petition appears to be time-barred under § 2244(d)(1)(A).
In addressing the timeliness of his habeas Petition, Petitioner states that he “is filing on
time” but fails to explain why he believes his Petition is timely. (Pet. 18.) Additionally, his
statement appears to reflect a misunderstanding of how the statute of limitations is calculated.
The Court shall provide Petitioner 21 days to explain why the instant § 2254 habeas
Petition should not be dismissed as untimely, including any reasons why equitable tolling should
apply. See Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002). Failure to comply with the Court’s
Order shall result in dismissal of the Petition without further notice.
IT IS, THEREFORE, ORDERED that Petitioner shall, within 21 days from entrance of
this Order, file a response explaining why his § 2254 Petition for Writ of Habeas Corpus should
not be dismissed as untimely.
IT IS FURTHER ORDERED that Petitioner’s second Motion to proceed in forma
pauperis (Doc. No. 4) is GRANTED.

Signed: May 31, 2017

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