United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge.
MATTER is before the Court upon Petitioner Roberto
Lainez's pro se Petition for Writ of Habeas Corpus, 28
U.S.C. § 2254. (Doc. No. 1). Also before the Court is
Lainez's “Motion to Consider Petitioner's
§ 2254 Habeas Petition Timely Filed.” (Doc. No.
is a prisoner of the State of North Carolina who pled guilty
in Haywood County Superior Court on April 5, 2010, to ten
counts of statutory rape. See N.C. Dep't of Pub.
Safety Offender Pub. Info.,
(Offender ID #1199598). The trial court sentenced Petitioner
to 192-240 months imprisonment. See id. According to
Petitioner, he did not file a direct appeal. (Pet. 1-2, Doc.
6, 2016, Petitioner filed a motion for appropriate relief
(“MAR”) in the Haywood County Superior Court.
(Pet. 2.) It was denied on August 4, 2016. (Pet. 2.) He filed
a petition for writ of certiorari on August 31, 2016, in the
North Carolina Court of Appeals, seeking review of the denial
of his MAR; it was denied on September 12, 2016. (Pet. 2-3.)
filed the instant habeas Petition in this Court on September
23, 2016, when he placed it in the prison mailing system.
(Pet. 10.) After conducting an initial review, the Court
notified Petitioner that the Petition appeared to be untimely
and provided him an opportunity to explain why it should not
be dismissed as such. (Order, Doc. No. 4.) In response,
Petitioner filed the instant “Motion to Consider
Petitioner's § 2254 Habeas Petition Timely
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 latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the