United States District Court, W.D. North Carolina, Statesville Division
ROBERT S. BALLARD, Petitioner,
ERIK A. HOOKS,  Respondent.
D. Whitney Chief United States District Judge
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.)
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 June 17, 2014) (unpublished).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.
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.
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
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.
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.
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.)
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 ...