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Dockery v. Hooks

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

July 6, 2017

DWAYNE HOYTE DOCKERY, Petitioner,
v.
ERIK A. HOOKS, [1]Respondent.

          ORDER

          FRANK D. WHITNEY UNITED STATES DISTRICT JUDGE

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

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina who, according to his Petition, pled guilty in Buncombe County Superior Court on March 11, 2009, to second-degree murder, obstruction of justice, and burning personal property. (Pet. 1, Doc. No. 1.) He was sentenced to a minimum of 225 months and a maximum of 279 months in prison. (Pet. 1.) He did not file a direct appeal. (Pet. 2.)

         On or about April 22, 2015, Petitioner filed a Motion for Appropriate Relief (“MAR”) in the Buncombe County Superior Court. See Cert. Pet. 2, Dockery v. State, No. P15-809 ( N.C. Ct. App. filed Oct. 21, 2015), available at North Carolina Supreme Court and Court of Appeals Electronic Filing Site and Document Library, https://www.ncappellatecourts.org. He filed an Amended MAR on August 13, 2015, and on August 24, 2015, the trial court denied the amended MAR. See Order Den. Am. MAR, id. at 6. He filed a Petition for Writ of Certiorari seeking review of the trial court's order in the North Carolina Court of Appeals, which was dismissed on November 5, 2015 for failure to comply with Rule 21(c) of the North Carolina Rules of Appellate Procedure. See Docket Sheet, id.

         In the interim, Petitioner filed a second MAR in the Buncombe County Superior Court on October, 9, 2015. See State's Resp. to Cert. Pet. 2 ¶ 6, State v. Dockery, No. P16-704 ( N.C. Ct. App. filed Sept. 27, 2016), available at https://www.ncappellatecourts.org. The trial court denied Petitioner's second MAR on May 6, 2016. See id. at 2-3 ¶ 4. The North Carolina Court of Appeals denied Petitioner's certiorari petition seeking review of the trial court's order on October 3, 2016. See Docket Sheet, id. He subsequently filed a petition for a writ of certiorari in the North Carolina Supreme Court, which was dismissed on March 16, 2017. (N. C. Supreme Court Order 1, Doc. No. 1-1.)

         Petitioner filed the instant habeas Petition in this Court on June 6, 2017. He raises the following ground for relief: “[I] was never given any mental evaluation at all for 1st degree murder. Counsel allowed me to plea [sic] guilty to 2nd degree murder in court and saying [sic] I wasn't on any medication which I was on Thorzine at trial.” (Pet. 5.)

         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).[2] 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 March 11, 2009, when Petitioner was sentenced. To the extent he retained the right to a direct appeal subsequent to his guilty pleas, Petitioner had 14 days to file a notice of appeal in the North Carolina Court of Appeals. See N.C. R. App. P. 4(a)(2). Because he did not file a direct appeal (Pet. 2), Petitioner's conviction became final on or about March 25, 2009, when the time for seeking direct review expired. See § 2244(d)(1)(A).

         The federal statute of limitations then ran for 365 days until it finally expired on or about March 25, 2010. None of Petitioner's filings in the state courts after that date either resurrected or restarted the statute of limitations. See Minter v. Beck, 230 F.3d 663, 665-66 (4th Cir. 2000). Thus, absent equitable tolling, Petitioner's habeas petition is time-barred under § 2244(d)(1)(A).

         Equitable tolling of the statute of limitations 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 ...


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