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Wiley v. Hawkins

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

April 11, 2017

TIMOTHY WILEY, Petitioner,
v.
JOHNNY HAWKINS, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

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

         I. PROCEDURAL BACKGROUND

         Petitioner is a prisoner of the State of North Carolina who was convicted by a Jackson County Superior Court jury of felonious breaking and entering and first-degree murder, under the felony-murder rule, with felony breaking and entering as the underlying felony. State v. Wiley, 642 S.E.2d 717, 720 ( N.C. Ct. App. 2007). The trial court sentenced Petitioner to life imprisonment without possibility of parole. (Pet. 1, Doc. No. 1.) Judgment was entered on October 6, 2000. Wiley, 642 S.E.2d at 719.

         Petitioner gave notice of appeal in open court, but the Appellate Defender subsequently declined appointment. (Aug. 18, 2014 Order Den. MAR ¶ 8, Doc. No. 1 at 57.) On December 28, 2004, the Appellate Defender was reappointed, and counsel filed a petition for writ of certiorari to perfect a belated appeal, which the North Carolina Court of Appeals granted on November 22, 2005. Def.-Appellant Br., State v. Wiley, No. COA06-451, 2006 WL 1745738, at *8 ( N.C. Ct. App. filed June 14, 2006).

         On April 3, 2007, the North Carolina Court of Appeals entered a published decision affirming Petitioner's judgment. Wiley, 642 S.E.2d at 723. Petitioner did not seek discretionary review by the North Carolina Supreme Court of the appellate court's decision until October 28, 2016. State v. Wiley, 201P16-2, 795 S.E.2d 220 ( N.C. filed Jan. 26, 2017) (Mem).

         On March 12, 2012, Petitioner filed a pro se Motion for Appropriate Relief (“MAR”) in the Jackson County Superior Court. (Aug. 18, 2014 Order Den. MAR ¶ 11.) It was denied on May 29, 2012. State v. Wiley, No. COA13-409, 753 S.E.2d 398, *1 ( N.C. Ct. App. Nov. 5, 2013) (unpublished Table decision). Petitioner filed a petition for writ of certiorari in the North Carolina Court of Appeals, seeking review of the trial court's order, which was allowed. Id. at *2. The appellate court appointed Petitioner counsel, vacated the trial court's order denying the MAR, and remanded for an evidentiary hearing. Id. at *5.

         On remand, the trial court held an evidentiary hearing and, on Aug. 18, 2014, issued an Order denying Petitioner's MAR. (Aug. 18, 2014 Order Den. MAR, Doc. No. 1 at 60.) Petitioner filed a petition for writ of certiorari seeking review of the trial court's Order; it was denied by the North Carolina Court of Appeals on March 24, 2016. (Order Den. Feb. 17, 2016 Cer. Pet., Doc. No. 1 at 52.) Next, Petitioner sought certiorari review of the appellate court's March 2016 decision; the North Carolina Supreme Court dismissed the petition on August 18, 2016. ( N.C. Order Den. 2016 Cer. Pet., Doc. No. 1 at 51.) Finally, on October 28, 2016, Petitioner sought discretionary review of the appellate court's denial of his direct appeal in 2007; that petition was dismissed by the North Carolina Supreme Court on Jan. 26, 2017. Wiley, 795 S.E.2d 220.

         Petitioner filed the instant § 2254 habeas Petition attacking his October 2000 judgment when he signed and placed it in the prison mail system on March 31, 2017. (Pet. 15.) For the reasons that follow, it shall be dismissed as untimely.

         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 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 date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A).[1] 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 October 6, 2000. The North Carolina Court of Appeals issued its Order denying Petitioner's direct appeal on April 3, 2007. Wiley, 642 S.E.2d at 723. Petitioner then had thirty-five (35) days to seek discretionary review in the North Carolina Supreme Court. See N.C. R. App. P. 15(b) (“A petition for review following determination by the Court of Appeals shall be . . . filed and served within fifteen days after the mandate of the Court of Appeals has been issued to the trial tribunal.”); N.C. R. App. P. 32(b) (“Unless a court orders otherwise, its clerk shall enter judgment and issue the mandate of the court twenty days after the written opinion of the court has ...


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