United States District Court, W.D. North Carolina, Charlotte Division
MELVIN PORTILLO HERNANDEZ, also known as Melvin Portillo-Hernan, Petitioner,
NORA HUNT, et al., Respondent.
D. Whitney, Chief United States District Judge
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).
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.
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.)
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.
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.)
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.)
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).
STANDARD OF REVIEW
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.
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 ...