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Lail v. White

United States District Court, W.D. North Carolina, Charlotte Division

April 9, 2015

TROY DOUGLAS LAIL, Petitioner,
v.
SUSAN WHITE, Superintendent, Alexander Correctional Institution, Respondent.

ORDER

FRANK D. WHITNEY, Chief District Judge.

THIS MATTER is before the Court on initial review of Petitioner Troy Douglas Lail's pro se Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)

I. BACKGROUND

On May 29, 2009, Petitioner pled guilty in Gaston County Superior Court to Assault with a Deadly Weapon, Fleeing to Elude Arrest, Driving While License Revoked, Failure to Heed a Blue Light or Siren, Reckless Driving, and Common Law Robbery. (Pet. 5, Doc. No. 1.)[1] He was sentenced to an active prison term of 135 to 171 months. (Pet., supra.) According to his habeas petition, Petitioner did not file a direct appeal. (Pet., supra, at 6.)

On September 9, 2014, Petitioner filed a Motion for Appropriate Relief ("MAR") in the Gaston County Superior Court. (Order Den. MAR, Pet., supra, at 43.) The MAR was denied without a hearing on September 23, 2014. (Order Den. MAR, supra.) Petitioner sought discretionary review of the superior court's decision by filing a petition for writ of certiorari in the North Carolina Court of Appeals, which was denied on December, 17, 2014. (Order Den. Pet. for Writ of Cert., Pet., supra, at 68.) Petitioner filed the instant § 2254 petition in federal district court on January 8, 2015.

II. STANDARD OF REVIEW

The Court is guided by Rule 4 of the Rules Governing Section 2254 Cases, which directs district courts to examine habeas petitions promptly. Rule 4, 28 U.S.C.A. foll. § 2254. When it plainly appears from any such petition and any attached exhibits that the petitioner is not entitled to relief, the reviewing court must dismiss the motion. Id.

III. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a one-year statute of limitations for § 2254 petitions. 28 U.S.C. § 2244(d)(1). The limitations period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."[2] § 2244(d)(1)(A). The limitations period is tolled during the pendency of a properly filed state post-conviction action. § 2244(d)(2).

Judgment was entered in this case on or about May 29, 2009. Petitioner then had fourteen (14) days to file a direct appeal in the North Carolina Court of Appeals. See N.C. R. App. P. 4(a)(2). His convictions became final on or about June 12, 2009, when the time for seeking direct review expired. See § 2244(d)(1)(A). The federal statute of limitations then proceeded to run for 365 days until it fully expired on or about June 14, 2010[3], more than four and a half years before Petitioner filed the instant habeas petition.

In addressing the timeliness issue, Petitioner argues that:

[t]he State of North Carolina has no statute of limitations when [sic] a defendant has to file any post-conviction petitions. Nor does this State limit the number of filings, that would limit any post-conviction petition. Since the State of North Carolina has no filing requirement, and is not prejudiced by filing this 1st writ of habeas [corpus], this Honorable Court should allow the petition to be filed.

(Pet. 17, Doc. No. 1.) Petitioner's argument conflates direct and post-conviction review.

Under § 2244(d)(1)(A), the federal statute of limitations begins to run from the date on which a conviction became final. A conviction becomes final at the conclusion of direct review or the expiration of the time for seeking such review. § 2244(d)(1)(A). The State of North Carolina sets the rules, by statute and/or appellate procedure, governing direct review of judgments and orders of superior and district courts in criminal actions cases. See ...


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