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Lainez v. Perry

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

July 10, 2017

ROBERTO LAINEZ, Petitioner,
v.
FRANK L. PERRY, et al., Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS 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. 5.)

         I. BACKGROUND

         Petitioner 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., http://webapps6.doc.state.nc.us/opi/offendersearch.do?method=list (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. No. 1.)

         On June 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.)

         Petitioner 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 Filed.”

         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 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 ...

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