Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ballard v. Hooks

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

June 1, 2017

ROBERT S. BALLARD, Petitioner,
v.
ERIK A. HOOKS, [1] Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on an initial review of Petitioner Robert S. Ballard's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). Also before the Court is Petitioner's Motion to proceed in forma pauperis. (Doc. No. 2.)

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina. The following procedural history relevant to the instant Petition is provided by the North Carolina Court of Appeals:

Defendant Robert Samuel Ballard pled no contest on 22 September 2006 to twenty-five counts of obtaining property by false pretenses, twenty-two counts of obtaining possession of a controlled substance by fraud or forgery, two counts of trafficking in opium, felony conspiracy to traffic in opium, and simple possession of a controlled substance. The court consolidated the trafficking and conspiracy counts into a single judgment and imposed an active term of 27 to 33 months imprisonment. The court also entered fifteen additional judgments, imposing consecutive terms of 15 to 18 months each. The court suspended these sentences and placed defendant on supervised probation for 42 months.

State v. Ballard, 762 S.E.2d 533, 2014 WL 2742876, at *1 ( N.C. Ct. App. June 17, 2014) (unpublished). Petitioner served his active sentence and was released on June 18, 2009. See State's Resp. to Cert. Pet. 2, State v. Ballard, No. P13-229 ( N.C. Ct. App. filed April 3, 2013), available at the North Carolina Supreme Court and Court of Appeals Electronic Filing Site and Document Library, https://www.ncappellatecourts.org.

         On June 22, 2011, June 27, 2011, and July 1, 2011, Petitioner's probation officer filed violation reports. See Ballard, 762 S.E.2d at *1. The Wilkes County Superior Court conducted a revocation hearing on April 16, 2012, concluded Petitioner had willfully violated the conditions of his probation, and activated his sentences. See id.

         Petitioner did not appeal the trial court's revocation and activation of his sentences. Instead, he filed a number of motions for appropriate relief in the Wilkes County Superior Court:

On 2 August 2012, petitioner filed a Motion for appropriate relief in Wilkes County Superior Court challenging his probation revocation. The trial court dismissed the motion on 18 September 2012. Petitioner filed an amended motion for appropriate relief on 24 September 2012. The amended motion was dismissed by the trial court on 30 September 2012. Petitioner filed a motion for reconsideration, which was denied on 10 October 2012.

See State's Resp. to Cert. Pet. at 3.

         On March 21, 2013, however, Petitioner filed a petition for writ of certiorari in the North Carolina Court of Appeals seeking review of the trial court's April 16, 2012 judgments revoking his probation. Id. The Court of Appeals granted the certiorari petition on April 9, 2013, but except for a clerical error, found no error in the judgments. Ballard, 762 S.E.2d at *3.

         Petitioner did not take any further action in the state courts. He filed the instant federal habeas Petition on April 30, 2017, when he placed it in the prison mail system. (Pet. 15, Doc. No. 1.) He alleges ineffective assistance of counsel with respect to his probation revocation proceedings (Pet. 5) and that the sentences for his false pretenses convictions were disproportionate to the crimes (Pet. 7.)

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.