United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
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).
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.
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).
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).
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(unpublished Table decision).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.
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.
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.
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
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). The limitations period is tolled during
the pendency of a properly filed state post-conviction
action. § 2244(d)(2).
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 ...