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
Billy Joe Walters' 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 Burke County Superior Court jury of
first-degree murder under the felony-murder rule, with common
law robbery as the underlying offense. Common law robbery was
presented to the jury as a lesser included offense of robbery
with a dangerous weapon. The trial court sentenced Petitioner
to life imprisonment without the possibility of parole.
Judgment was entered on July 7, 1999. (Order Dismiss'g
MAR 15, Doc. No. 1.)
direct appeal, the North Carolina Court of Appeals found no
error in Petitioner's trial or sentencing. State v.
Walters, 550 S.E.2d 279 ( N.C. Ct. App. 2001)
(unpublished). The North Carolina Supreme Court denied his
petition for discretionary review on October 3, 2002.
State v. Walters, 571 S.E.2d 213 ( N.C. 2002) (Mem).
filed a Motion for Appropriate Relief (“MAR”) in
Burke County Superior Court on January 22, 2015. (Order
Dismiss'g MAR 15.) It was denied on the merits on April
30, 2015. (Order Dismiss'g MAR 18.) His petition for writ
of certiorari seeking review of the Order dismissing his MAR
was denied by the North Carolina Court of Appeals on June 24,
2015. (Order Den. Cert. Pet. 41, Doc. No. 1.)
filed the instant § 2254 habeas Petition on February 10,
2017 when he signed and placed it in the prison mail system.
(Pet. 14, Doc. No. 1.) He raises the following claims: the
armed robbery indictment was defective; the trial court erred
in sentencing him based on a defective indictment; the trial
court erred in denying his MAR; trial counsel was ineffective
for failing to present available evidence that would have
corroborated Petitioner's testimony; and appellate
counsel was ineffective for refusing to raise the ineffective
assistance of trial counsel claim on appeal.
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).
conviction became final on or about January 2, 2003, 90 days
after the North Carolina Supreme Court denied his petition
for discretionary review, and the time for Petitioner to file
a petition for writ of certiorari in the United States
Supreme Court expired. Clay v. U.S., 537 U.S. 522, 527
(2003); Sup. Ct. R. 13.1 (setting 90-day time limit for
filing a petition for writ of certiorari). The statute of
limitations then ran for 365 until it fully expired on or
about January 2, 2004. None of Petitioner's filings in
the state courts after that date served to resurrect or
restart the federal statute of limitations. See Minter v.
Beck, 230 F.3d 663, 665-66 (4th Cir. 2000) (recognizing
that state applications for collateral review cannot revive
an already expired federal limitations period). Therefore,
absent equitable tolling, the § 2254 Petition is
untimely. See § 2244(d)(1)(A).
tolling of a habeas petition is available only when the
petitioner demonstrates “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649
(2010) (internal quotation marks omitted). Under Fourth
Circuit precedent, equitable tolling is appropriate in those
“rare instances where-due to circumstances external to
the party's own conduct-it would be unconscionable to
enforce the limitation period against the party and gross
injustice would result.” Rouse v. Lee, 339
F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris
v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000))
(internal quotation marks omitted).
acknowledges that the instant Petition was not filed within a
year of his conviction becoming final, but states that it has
taken several years to obtain parts of his discovery and that
he still has not been provided his complete file. (Pet. 13
¶ 18.) Petitioner fails to articulate how these facts
prevented him from filing a federal habeas Petition for more
than 14 years. For example, he states that his appellate
attorney refused his request to ...