Opinion
1:01CV00885
March 8, 2002
MEMORANDUM OPINION AND ORDER
Petitioner John Wayne Greer, a prisoner of the State of North Carolina, on February 5, 1997, in the Superior Court of Forsyth County, was convicted after trial by jury of possession of cocaine and possession of drug paraphernalia while being an habitual felon. He was sentenced to 133 to 169 months imprisonment. Petitioner appealed. But on May 19, 1998, the North Carolina Court of Appeals issued an unpublished opinion finding no error in Petitioner's trial. Petitioner was represented at trial by attorney George Bedsworth and on appeal by attorney Paul M. James, III. Other than his direct appeal. Petitioner Greer has not filed any petitions. applications or motions with respect to his convictions, in any court, state or federal. ( See Petition at 3 § 10 Petitioner dated his federal habeas petition September 9, 2001, and it was received by this Court on September 13, 2001 and stamped "filed" on September 21, 2001.
Claims of the Petition
In his habeas petition, Petitioner Greer contends that: (1) it was error for the trial court to deny Petitioner's motion to suppress evidence which was obtained in violation of the Fourth Amendment; and (2) he received ineffective assistance of counsel for various reasons.
Discussion
The State presents a first defense that the petition is time-barred by reason of the one-year statute of limitations. See 28 U.S.C. § 2254 (d)(1). For reasons set forth below, the Court agrees.
Petitioner's conviction became final for purposes of direct review 15 days after the North Carolina Court of Appeals issued its mandate from its May 19, 1998 written opinion. See N.C.R. of App. P., Rules 14(a) and 15(b) (2001) (a party has 15 days from the issuance of the mandate of the Court of Appeals to file a notice of appeal or petition for discretionary review (PDR) to the Supreme Court of North Carolina). The mandate of the Court of Appeals, which consists of the appellate court's judgment and a copy of its opinion, issued 20 days later on June 8, 1998. (Copy attached to State's Brief.) See N.C.R. of App. P., Rule 32 (b) (2001) (mandate consisting of judgment and copy of opinion issues 20 days after written opinion unless otherwise ordered).
Therefore, under 28 U.S.C. § 2244 (d)(1), Petitioner had one year or until June 8, 1999 to timely file his federal habeas petition. Because Petitioner dated his federal habeas petition September 7, 2001, it is approximately two years and three months out of time. It must therefore be summarily dismissed on statute of limitation grounds pursuant to § 2244(d)(1).
In response to the motion to dismiss, Petitioner Greer has claimed that he made many attempts to contact his appellate attorney but counsel never responded to his inquiries. According to Petitioner, he did not learn of the denial of his appeal until the North Carolina Court of Appeals, in response to his inquiry, sent him a copy of the opinion denying his appeal on September 1, 2001. Petitioner Greer says he quickly filed his habeas petition with this court after learning of the denial of his appeal.
Petitioner Greer's assertions are fully belied, however, by exhibits presented by the State on reply. These exhibits include correspondence between Petitioner and his appellate attorney that establishes conclusively that Petitioner was advised by counsel of the unsuccessful outcome of his appeal in late May 1998. Petitioner Greer wrote back to counsel on June 1, 1998, acknowledging receipt of counsel's letter advising him of the appeal outcome.
The Court finds that the statute of limitations has run on Petitioner Greer's claims and he has raised no colorable claim for equitable tolling. The petition should be dismissed.
Conclusion
For reasons set forth above, IT IS ORDERED that Respondent's motion to dismiss on statute of limitation grounds [Pleading no. 4] be GRANTED. A judgment dismissing this action with prejudice will be entered contemporaneously with this Memorandum Opinion and Order. A certificate of appealability is not issued, the court finding that no substantial issue is presented.