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Hernandez v. Hunt

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

February 13, 2017

MELVIN PORTILLO HERNANDEZ, also known as Melvin Portillo-Hernan, Petitioner,
v.
NORA HUNT, et al., Respondent.

          ORDER

          Frank D. Whitney, Chief United States District Judge

         THIS MATTER is before the Court upon initial review of Petitioner Melvin Portillo Hernandez's amended pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 4).

         I. BACKGROUND

         Petitioner is a prisoner of the state of North Carolina who, on March 10, 2005, pled guilty in Mecklenburg County Superior Court, pursuant to a plea, to two counts of trafficking cocaine. As part of the deal, Petitioner's bond was unsecured and sentencing was continued so that Petitioner could provide substantial assistance to the State in other criminal matters and receive a lesser sentence. Petitioner picked up new trafficking charges in 2006 during the time he was out of custody and supposedly providing substantial assistance to the State. (Order Den. Dec. 14, 2015 MAR 27-31, Doc. No. 4-1.)

         Petitioner was sentenced on August 18, 2006. At the sentencing hearing, Petitioner was represented by counsel and assisted by a sworn interpreter. Both sides agreed that: 1) Petitioner could not provide substantial assistance as was agreed on March 10, 2005, the date of his plea; 2) there could not be any consideration of substantial assistance for sentencing; and 3) Petitioner would be subject to the mandatory minimums both in sentence and fine. Petitioner was given the opportunity to speak and chose not to. The State dismissed the new trafficking charges prior to sentencing, so as not to impact the agreed upon sentence. The court followed the plea agreement, consolidated the charges for judgment, and sentenced Petitioner to 175-219 months imprisonment. (Order Den. Dec. 14, 2015 MAR 27-31.)

         Petitioner filed a motion for appropriate relief in Mecklenburg County Superior Court on September 9, 2007. It was denied on October 19, 2007. (Order Den. Dec. 14, 2015 MAR 27-31.) It appears from the amended Petition that Petitioner did not seek further review in the North Carolina Court of Appeals.

         Petitioner filed another MAR in Mecklenburg County Superior Court on December 14, 2015; it was denied on February 25, 2016. (Am. Pet. 4, Doc. No. 4.) He subsequently filed a petition for writ of certiorari seeking review of the denial of his 2015 MAR; the North Carolina Court of Appeals denied the petition on April 18, 2016. (Order Den. Cert. Pet. 1, Doc. No. 4-1.)

         Petitioner filed his original federal habeas Petition on April 29, 2016, when he signed and placed it in the prison mailing system. (Pet. 14, Doc. No. 1.) After conducting an initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in District Court, the Court entered an Order directing Respondent to file an answer, motion or response to the claims raised in the Petition. (Doc. No. 3.)

         Before Respondent's deadline to comply, the Clerk of Court received and docketed Petitioner's amended habeas Petition, which included 190 pages of exhibits. (Doc. Nos. 4, 4-1.) After reviewing all of these documents, the Court concluded it is premature for Respondent to file an answer in this action. Consequently, the Court vacated its Order requiring Respondent to answer and gave Petitioner an opportunity to explain why his Petition should not be dismissed as untimely. (Doc. No. 5.) Respondent, nevertheless, filed an Answer, Motion for Summary Judgment, and supporting brief. (Doc. Nos. 6-8.) Petitioner subsequently filed a “Motion to Consider Petitioner's § 2254 Habeas Petition Timely Filed” (Doc. No. 9) and response to Respondent's Motion for Summary Judgment (Doc. No. 10).

         II. STANDARD OF REVIEW

         The Court is guided by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, which directs district courts to dismiss habeas petitions when it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief. Rule 4, 28 U.S.C.A. foll. § 2254. 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). The court may dismiss a petition as untimely under Rule 4, however, only if it is clear that the petition is untimely, and the petitioner had notice of the statute of limitations and addressed the issue. Id. at 706-707.

         III. DISCUSSION

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides a statute of limitations for § 2254 petitions by a person in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The petition must be filed within one year of the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time ...

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