United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY UNITED STATES DISTRICT JUDGE
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).
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.)
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.
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.)
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.)
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 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).
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).
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 ...