United States District Court, M.D. North Carolina
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
Petitioner, a prisoner of the State of North Carolina, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application to proceed in forma pauperis. (Docket Entries 1, 2.) For the reasons that follow, the Court should dismiss the Petition.
According to the Petition and attached exhibits, on February 5, 1998, the Superior Court of Forsyth County entered judgment against Petitioner for first-degree murder and two counts of robbery with a dangerous weapon in cases 96 CRS 25622 and 96 CRS 25756, with judgment arrested on one of the robbery counts. (Docket Entry 2, §§ 1, 2, 5; Docket Entry 2-1 at 7, 8; Docket Entry 2-2 at 1-1; Docket Entry 2-3 at 1.) Sentenced to life without parole plus a consecutive 129 to 164 months of imprisonment (Docket Entry 1, § 3), Petitioner filed a direct appeal (id., § 9(a)). The North Carolina Court of Appeals initially dismissed the appeal on procedural grounds (see Docket Entry 2, § 9(c); Docket Entry 2-1 at 9), but ultimately granted review via certiorari and denied Petitioner's appeal on its merits, leading Petitioner to seek further review from the North Carolina Supreme Court, which dismissed the appeal on February 5, 2009. State v. Beasley, No. COA07-1157, 2008 WL 2582478, 191 N.C. App. 252 (table), 662 S.E.2d 578 (table), (July 1, 2008) (unpublished), appeal dismissed, 363 N.C. 131, 673 S.E.2d 659 (2009). Petitioner did not file a petition for certiorari with the United States Supreme Court. (Docket Entry 2, § 9(h).)
On April 16, 2010, Petitioner filed a motion for appropriate relief (MAR) with the Forsyth County Superior Court, which that court later denied on February 24, 2011. (Docket Entry 2, § 11(a); Docket Entry 2-1 at 7; Docket Entry 2-2 at 22.) Petitioner then filed a petition for certiorari with the North Carolina Court of Appeals, which denied relief on May 3, 2011. Beasley v. State of North Carolina, No. P11-330 ( N.C. App. May 3, 2011) (unpublished). Petitioner filed a second MAR in Forsyth County on October 16, 2013, which the trial court denied on November 12, 2013. (Docket Entry 2, § 12, Ground Two (d); Docket Entry 2-3 at 1.) The record does not reflect that Petitioner then filed anything further in the state courts before bringing his Petition in this Court.
Petitioner raises two claims for relief in this Court: 1) that the trial court erred by denying a challenge to the jury panel (Docket Entry 2, § 12 Ground One(a)); and 2) that, for the reasons set out in Petitioner's second MAR, there exists a "question of propia persona sui juris averment of jurisdiction" (id. § 12, Ground Two(a)). Rule 4 of the Rules Governing Section 2254 Cases, states:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
In conducting its review under Rule 4, the Court "has the power to raise affirmative defenses sua sponte, " including a statute of limitations defense under 28 U.S.C. § 2244(d). Hill v. Braxton , 277 F.3d 701, 706 (4th Cir. 2002). However, the Court may only dismiss a petition as untimely under Rule 4 if the untimeliness appears clear on the petition's face and the petitioner has notice of the statute of limitations, as well as an opportunity to address the issue. Id. at 706-07.
Here, Petitioner used the standard § 2254 form to file his Petition. (See Docket Entry 2.) That form includes this section: "TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition." (Id., § 18.) Petitioner responded at length with an explanation of why he believed his petition remains timely and he indicated no confusion concerning the statute of limitations. (See id.) Therefore, Petitioner not only received notice and a chance to respond, but took advantage of that opportunity. Accordingly, under Hill, the Court may consider whether or not the statute of limitations clearly bars the Petition. See, e.g., Smith v. Shanahan, No. 1:13-cv-166, 2013 WL 3280022, at *4 n.2 (W.D. N.C. June 27, 2013) (unpublished) (ruling no further warning or explanation necessary under Hill where the petitioner addressed the statute of limitations and indicated no confusion); Graves v. Lewis, No. 3:12-cv-480-RJC, 2013 WL 1190287, at *2 n.2 (W.D. N.C. Mar. 22, 2013) (unpublished) (same), appeal dismissed, 532 F.App'x. 327 (4th Cir. 2013).
In order to assess the applicability of the statute of limitations, the Court first must determine when Petitioner's one-year period to file his § 2254 Petition commenced. In this regard, the United States Court of Appeals for the Fourth Circuit has explained that:
Under § 2244(d)(1)(A)-(D), the one-year limitation period begins to run from the latest of several potential starting dates:
(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 ...