Order & Memorandum & Recommendation

ROBERT T. NUMBERS, II, Magistrate Judge.

Petitioner Rocky James Bryant, a state inmate proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (D.E. 1). This matter is before the court upon respondent's motion to dismiss (D.E. 10). Also before the court are Bryant's motions to appoint counsel (D.E. 16, 17) and motion for evidentiary hearing (D.E. 18). For the following reasons, Bryant's motions are denied, and the undersigned recommends that the district court grant respondent's motion to dismiss.

I. Background

In February, 1990, a jury found Bryant guilty of first-degree burglary, wrongful entry, first-degree sexual offense, second-degree kidnapping, and second-degree attempted rape. Pet. at 1-2, D.E. 1. The trial court sentenced Bryant to several consecutive terms of imprisonment, including two life sentences. Id. at 1. Petitioner appealed. Id. at 2. The North Carolina Court of Appeals found no error in plaintiff's judgment, and the North Carolina Supreme Court denied further review. State v. Bryant, 102 N.C. App. 134, 402 S.E.2d 176, review denied, 328 N.C. 733, 404 S.E.2d 873 (1991). Bryant did not file any motions seeking state post-conviction relief. Pet. at 4.

Bryant filed his § 2254 petition on November 29, 2016.1 Pet. at 15, D.E. 1. His claims survived initial review (D.E. 5). Respondent filed this motion to dismiss in November, 2017 (D.E. 10), and Bryant responded (D.E. 13, 14). After responding to the motion to dismiss, Bryant later filed two motions seeking the appointment of counsel (D.E. 16, 17), and a motion requesting an evidentiary hearing (D.E. 18).

II. Discussion

A. Motions to Appoint Counsel

No right to counsel exists in habeas corpus actions. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Nonetheless, the court may appoint counsel if it determines that "the interests of justice so require." 18 U.S.C. § 3006A(a)(2). Here, there are no issues of great legal complexity, and therefore the interests of justice do not mandate the appointment of counsel. Furthermore, Bryant's filings indicate that he is able to argue his case. Accordingly, Bryant's requests for appointed counsel (D.E. 16, 17) are DENIED.

B. Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A claim is stated if the complaint contains "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the [petitioner]," but does not consider "legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, this plausibility standard requires a petitioner to articulate facts, that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 557). Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See Fed. R. Evid. 201; Tellabs, Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

Respondent argues that petitioner's section 2254 petition is time-barred. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that any application for a writ of habeas corpus filed by a person in custody pursuant to the judgment of a state court be filed within one year of the latest of certain dates. 28 U.S.C. § 2244(d)(1); see Frasch v. Peguese, 414 F.3d 518, 521 (4th Cir. 2005). The limitation period begins running from the latest of:

28 U.S.C. § 2244(d)(1)(A)-(D).

Subsection (A) of section 2244(d)(1) requires the court to determine when Bryant's judgment became final. See 28 U.S.C. § 2244(d)(1)(A). Because Bryant's conviction became final prior to the effective date of AEDPA, the one-year statute of limitations runs from April 24, 1996, AEDPA's effective date. Brown v. Angelone, 150 F.3d 370, 375 (4th Cir. 1998). Therefore, the statutory period ran from April 24, 1996, until it expired on April 24, 1997. See, e.g., Holland v. Florida, 560 U.S. 631, 638 (2010); Hernandez v. Caldwell, 225 F.3d 435, 437-38 (4th Cir. 2000). Bryant did not file his petition in this court until November 2016, more than 19 years after the limitations period expired. Thus, absent equitable tolling, the district court must dismiss his petition as untimely.

Under the AEDPA, the one-year statute of limitations is subject to equitable tolling. Holland, 560 U.S. at 655. Equitable tolling applies only if a petitioner shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. (quotations omitted); see Green v. Johnson, 515 F.3d 290, 304 (4th Cir. 2008). A court may allow equitable tolling under section 2244 "in those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Green, 515 F.3d at 304 (quotations omitted); see Jackson v. Kelly, 650 F.3d 477, 491-92 (4th Cir.), cert. denied, 549 U.S. 1122 (2011). "[A]ny invocation of equity to relieve the strict application of a statute of limitations," however, "must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Harris, 209 F.3d at 330.

Bryant's argues that equitable tolling is proper because he is proceeding pro se and he was unaware of the AEDPA's limitations period. Pet. at 13-14, D.E. 1. But unfamiliarity with the legal process, lack of representation, and even illiteracy do not constitute grounds for equitable tolling. See, e.g., United States v. Sosa, 364 F.3d 507, 512-13 (4th Cir. 2004); Harris, 209 F.3d at 330-31 (collecting cases); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (per curiam). Bryant has not put forth any reason he did not or could not file the present petition within ADEPA's one-year statute of limitations period. Nor has Bryant shown that he diligently pursued his rights or that any extraordinary circumstance prevented him from filing his petition in a timely manner. See Whiteside v. United States, 775 F.3d 180, 186 (4th Cir. 2014). Thus, his petition should be dismissed as time-barred.

In light of this determination, Bryant's request for an evidentiary hearing (D.E. 18) is DENIED. Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) ("In order to obtain an evidentiary hearing . . . a habeas petitioner must come forward with some evidence that the claim might have merit. Unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing."), cert. denied, 507 U.S. 923, abrogated on other grounds by, Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999); Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991) ("[B]ald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing.").

C. Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases ("Habeas Rules") provides "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Having determined petitioner is not entitled to relief and respondent is entitled to dismissal of the petition, the court considers whether petitioner is still entitled to a certificate of appealability about one or more of the issues presented in his habeas petition.

A certificate of appealability may issue only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When the district court has adjudicated and denied a petitioner's constitutional claims on the merits, the petitioner must establish that reasonable jurists could debate whether the court should have decided the issue differently or show the issue is adequate enough to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

When a petitioner's constitutional claims are dismissed on procedural grounds, a certificate of appealability will not issue unless the petitioner can establish both "(1) `that jurists of reason would find it debatable whether the petition [or motion] states a valid claim of denial of a constitutional right' and (2) `that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack, 529 U.S. at 484). "Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." Slack, 529 U.S. at 484-85.

After reviewing the claims presented in the habeas petition in light of the applicable standard, the court finds reasonable jurists would not find the court's treatment of any of Bryant's claims debatable or wrong and none of the issue are adequate to deserve encouragement to proceed further. Accordingly, the undersigned recommends denying a certificate of appealability.

III. Conclusion

For the aforementioned reasons, Bryant's motions to appoint counsel (D.E. 16, 17) and motion for evidentiary hearing (D.E. 18) are denied. In addition, the undersigned recommends that the district court grant respondent's motion to dismiss (D.E. 10) and dismiss Bryant's petition. The undersigned also recommends denying a certificate of appealability.

Furthermore, the court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on petitioner. Petitioner shall have until 14 days after service of the Memorandum and Recommendation on petitioner to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.

If petitioner does not file written objections to the Memorandum and Recommendation by the foregoing deadline, petitioner will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, petitioner's failure to file written objections by the foregoing deadline will bar petitioner from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).