Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Save to My Library
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
Bodie v. Smith - Document No. 2

Bodie v. Smith - Document No. 2

Ratings: (0)|Views: 543|Likes:
Published by Justia.com
ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by LeRoy Bodie, Jr. as untimely filed.. Signed by Judge Graham Mullen on 11/20/2007. (cbb) 5:2007cv00124 North Carolina Western District Court
ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by LeRoy Bodie, Jr. as untimely filed.. Signed by Judge Graham Mullen on 11/20/2007. (cbb) 5:2007cv00124 North Carolina Western District Court

More info:

Published by: Justia.com on Apr 30, 2008
Copyright:Public Domain

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

10/14/2013

pdf

text

original

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:07CV124-MU-02

LEROY BODIE,
)
Petitioner,
))
v.
)
ORDER
)
ROBERT SMITH, Supt.,
)
Maury Correctional
)
Institution, et al.,
)
Respondents.
)
_________________________)
THIS MATTER comes before the Court on the petitioner\u2019s

Petition for a Writ of Habeas Corpus, filed November 13, 2007. For the reasons stated herein, the petitioner\u2019s Petition will be dismissed as untimely filed.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to the Petition, on August 20, 1998, a jury convicted the petitioner of Statutory Sexual Offense; Taking Indecent Liberties with a Minor; two counts of Statutory Rape; and First Degree Kidnaping.

Consequently, on that occasion, the Superior Court of Iredell County sentenced the petitioner to a total sentence of \u201cmore than 513 months\u201d imprisonment.

The petitioner appealed his case to the North Carolina Court of Appeals. However, on March 21, 2000, the State appellate Court issued an unpublished opinion, finding \u201cno error\u201d in the

Case 5:07-cv-00124-GCM Document 2
Filed 11/20/2007 Page 1 of 8
Bodie v. Smith
Doc. 2
Dockets.Justia.com
petitioner\u2019s case.
See North Carolina v. Bodie, No. 99-280
(N.C.App. March 21, 2000).

Next, the North Carolina Supreme Court denied the petitioner\u2019s Petition for a Writ of Discretionary Review. See North Carolina v. Bodie, No 142P00 (N.C. May 4, 2000), and the petitioner did not seek certiorari review at the U.S. Supreme Court.

Rather, after waiting several years, on April 3, 2006, the petitioner filed an unsuccessful \u201c\u2018Petition For Plain Error Review . . . \u2018\u201d at the North Carolina Court of Appeals. Then, about one year later,

on June 6, 2007, the petitioner filed a Motion for Appropriate Relief, not in the Superior Court of Iredell County, but in the North Carolina Court of Appeals.

Not surprisingly,
however, that Motion also was denied.

Thereafter, on June 18, 2007, the petitioner filed a second Motion for Appropriate Relief. However, that Motion was filed in the appropriate Superior Court. Nevertheless, on July 5, 2007, the petitioner\u2019s Motion was denied, and his final Petition for Certiorari was denied by the State Court of Appeals on August 16, 2007.

Undaunted, the petitioner came to this Court on November 13, 2007 and filed the instant undated Habeas Petition under 28 U.S.C. \u00a72254. By that Petition, the petitioner essentially claims that his sentences were imposed in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000); that his sentences were imposed in violation of the Fifth Amendment\u2019s Double Jeopardy Clause; that counsel was ineffective for his alleged failure to

Case 5:07-cv-00124-GCM Document 2
Filed 11/20/2007 Page 2 of 8

challenge the petitioner\u2019s sentences at trial, and to explain the petitioner\u2019s appellate rights; and that otherwise unspecified \u201cState Courts\u201d violated his right to an appeal when, at some point, those \u201cCourts denied his pro-se request\u201d for an appeal.

Notwithstanding his contentions to the contrary, however, the undersigned has determined that the instant Petition was filed well beyond the applicable limitations period. Therefore, this Petition must be summarily dismissed.

II. ANALYSIS

Indeed, in April 1996, the U.S. Congress enacted the Antiterrorism and Effective Death Penalty Act, effectively amending 28 U.S.C. \u00a72254 by adding the following language:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from 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 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
Case 5:07-cv-00124-GCM Document 2
Filed 11/20/2007 Page 3 of 8

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->