Luke Brandon Buskirk v. Leslie Cooley-Dismukes

• Court: District Court, M.D. North Carolina
• Decided: March 5, 2026
• Docket: 1:25-cv-00693
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LUKE BRANDON BUSKIRK, ) ) Petitioner, ) ) v. ) 1:25CV693 ) LESLIE COOLEY-DISMUKES, ) ) Respondent. )

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

The petitioner Luke Brandon Buskirk maximum for murder; and 64 (“Buskirk”), a prisoner of the State of months’ minimum, 89 months’ North Carolina, seeks a writ of habeas maximum for robbery. Id. Buskirk did corpus pursuant to 28 U.S.C. § 2254. not pursue a direct appeal. Docket Docket Entry 1. The respondent filed Entry 1, § 8. On June 20, 2025, a motion to dismiss, Docket Entry 7, Buskirk filed a Petition for Writ of and a supporting brief, Docket Entry Habeas Corpus in the North Carolina 8. Buskirk was notified of his right to Supreme Court. Docket Entry 8, Exs. file a response, Docket Entry 9; 3-4. The court denied the petition on however, no response was filed and June 23, 2025. Id., Ex. 4. He has not the time to do so has expired. This filed any other state post-conviction matter is now ripe for disposition. For challenges to his conviction. Buskirk the reasons set forth below, the Court then filed the instant federal habeas recommends that this matter be petition on July 24, 2025. Docket dismissed in its entirety. Entry 1.

I. Background II. Grounds for Relief

On February 1, 2016, Buskirk pled Buskirk alleges: (1) ineffective guilty in Rockingham County assistance of counsel for failure to Superior Court to second-degree investigate the facts of the case, (2) murder and robbery with a dangerous ineffective assistance of counsel for weapon. Docket Entry 8, Exs. 1-2. The failure to object to his questioning, (3) same day the trial court imposed two ineffective assistance of counsel for active concurrent sentences of 288 failure to suppress lack of months’ minimum, 358 months’ identification, and (4) ineffective assistance of counsel on all viable U.S.C. § 2244(d)(1)(A) (providing that grounds. Docket Entry 1, Grounds a conviction is final “the date on which One-Four. As set forth below, these the judgment became final by the claims are all time-barred. conclusion of direct review or the expiration of the time for seeking such III. Discussion review”); see also N.C. R. App. P. 4(a) (10 days to serve notice of appeal, The respondent has moved to dismiss amended effective October 18, 2001 the petition on the grounds that it is to allow 14 days). time-barred by the one-year limitation period 28 U.S.C. Therefore, Buskirk’s one-year period § 2244(d)(1) imposes. Docket Entry 8 of limitation under 28 U.S.C. at 3-4. § 2244(d)(1) commenced in mid- February of 2016 and expired 365 The Antiterrorism and Effective days later in late mid-February of Death Penalty Act of 1996 (“AEDPA”) 2017. Buskirk dated and filed his imposes a one-year statute of petition in July of 2025. Docket Entry limitations on state prisoners seeking 1. It is more than eight years too late. habeas corpus review in federal court. 28 U.S.C. § 2244(d)(1). The statute Buskirk did make certain state begins to run, as applicable here, from collateral filings, which generally toll the latest of a series of dates, the federal habeas deadline for “the including: “(A) the date on which the entire period of state post-conviction [petitioner’s] judgment [of proceedings, from initial filing to final conviction] became final by the disposition by the highest court conclusion of direct review or the (whether decision on the merits, expiration of the time for seeking such denial of certiorari, or expiration of review[.]” See also Green v. Johnson, the period of time to seek further 515 F.3d 290, 303-04 (4th Cir. 2008) appellate review).” Taylor v. Lee, 186 (citing the statute).1 F.3d 557, 561 (4th Cir. 1999). See also 28 U.S.C. § 2244(d)(1)(2) (“The time Here, Buskirk’s criminal state court during which a properly filed judgment was entered on February 1, application for State post-conviction 2016. Docket Entry 8, Exs. 1-2. or other collateral review with respect Buskirk did not pursue a direct appeal to the pertinent judgment or claim is with the North Carolina Court of pending shall not be counted toward Appeals. Docket Entry 1, § 8. any period of limitation under this Buskirk’s conviction thus became subsection.”). final, at the latest, fourteen days later in mid-February of 2016. See 28

1 The record does not reveal any and Buskirk has not invoked these meaningful basis for addressing subparagraphs. subparagraphs (B) or (C) of § 2244(d)(1), Here, though, Buskirk did not file any tolling, and does not assert actual collateral motions in the state courts innocence. See Docket Entry 1. His until 2025, years after the limitations petition is time-barred. period on filing a federal habeas petition expired. State filings after the Last, the Court notes that Buskirk has limitation period passes do not restart attached a supporting memorandum the filing period. See Minter v. Beck, to his petition. Docket Entry 1, Attach. 230 F.3d 663, 665 (4th Cir. 2000). 1. It itemizes his efforts at self- improvement and rehabilitation while That being said, it is well-settled, that incarcerated. Id. While these efforts the deadlines set forth in Section are not relevant to the time-bar 2244(d) are subject to equitable analysis, and so do not change the tolling. See Harris v. Hutchinson, 209 outcome here, the Court commends F3d 325, 330 (4th Cir. 2009). Buskirk on his efforts at self- “Equitable tolling is appropriate improvement. when, but only when, extraordinary circumstances beyond [the IV. Conclusion petitioner’s] control prevented him from complying with the statutory Because Buskirk’s grounds are time- time limit.” Rouse v. Lee, 339 F.3d barred, neither a hearing, nor 238, 246 (4th Cir. 2003) (alterations discovery, nor the appointment of in original) (internal quotations and counsel are warranted. citations omitted). However, Buskirk has made no such showing here.

In summary, Buskirk’s statute of limitation began to run in mid- February of 2016 and expired 365 days later in mid-February of 2017. His state post-conviction proceedings did not entitle him to statutory tolling because they were filed and resolved after the duration of the limitations period. Buskirk did not submit the instant petition until July of 2025, more than eight years after the expiration of the federal habeas deadline. Buskirk does not dispute the foregoing timeline, does not explain why his petition was filed more than one-year after his conviction became final, does not invoke (or appear to be entitled to) statutory or equitable IT IS THEREFORE for appeal concerning the denial of a RECOMMENDED that the constitutional right affecting the respondent’s motion to dismiss, conviction nor a debatable procedural Docket Entry 7, bo GRANTED, that ruling, a certificate of appealability the petition, Docket Entry 1, be not issue. DISMISSED, that judgment be entered dismissing this action, and This, the 5th day of March, 2026. that, there being no substantial issue

J i Gibson United States Magistrate Judge