United States District Court, W.D. North Carolina, Charlotte Division
CARSON D. HYDE, Petitioner,
HAROLD REEP, Respondent.
D. Whitney, Chief United States District Judge
MATTER is before the Court upon Petitioner Carson D.
Hyde's pro se Petition for Writ of Habeas Corpus, 28
U.S.C. § 2254. (Doc. No. 1).
is a prisoner of the State of North Carolina who, on February
29, 2012, was convicted of trafficking in marijuana and
possession of marijuana with intent to sell or deliver after
a jury trial in Gaston County Superior Court. He was
sentenced to consecutive sentences of 35-42 months in prison.
Petitioner did not file a direct appeal. (Pet. 1-2, Doc. No.
April 24, 2015, Petitioner filed a petition for writ of
certiorari in the North Carolina Court of Appeals pursuant to
North Carolina Rule of Appellate Procedure 21, which provides
that a “writ of certiorari may be issued in appropriate
circumstances by either appellate court to permit review of
the judgments and orders of trial tribunals when the right to
prosecute an appeal has been lost by failure to take timely
action, " N.C. R. App. P. 21(a)(1). (Cert. Pet.
33-53, Doc. No. 1.) Petitioner alleged that trial counsel
failed to advise him of his right to appeal, the manner and
deadline to give notice of appeal, and the availability of
appointed appellate counsel for an indigent defendant. (Cert.
Pet. 40.) Separately, trial counsel asserted that after
sentencing, he spoke with Petitioner's “significant
other” who stated Petitioner did not wish to appeal.
(Tr. Counsel's Let. to Pet. 55, Doc. No. 1.) The North
Carolina Court of Appeals denied the certiorari petition on
May 13, 2015. ( N.C. App. Crt. Order 31, Doc. No. 1.)
filed the instant § 2254 habeas Petition on July 14,
2016, when he placed it in the prison mail system. (Pet. 27,
Doc. No. 1.) He claims trial counsel was ineffective for
failing to advise him of his right to file a direct appeal.
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 § 2254 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. 28 U.S.C. § 2244(d)(2).
was entered in this case on February 29, 2012, when
Petitioner was sentenced. He then 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, Petitioner's judgment became final on or
about March 14, 2012, when the time for seeking direct review
expired. See § 2244(d)(1)(A).
federal statute of limitations then ran for 365 days until it
fully expired on or about March 14, 2013, more than three
years before Petitioner filed the instant § 2254 habeas
action. Thus, absent equitable tolling, Petitioner's
habeas petition is time-barred under § 2244(d)(1)(A).
tolling of a habeas petition 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 result.” Rouse v. Lee, 339
F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris
v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000))
(internal quotation marks omitted).
to Petitioner, he asked trial counsel after sentencing
whether he could appeal, and trial counsel responded that
“it would be too much paperwork.”
(Pet'r's April 17, 2015 Aff. 51 ¶ 5, Doc. No.
1.) Petitioner's next action was to write trial counsel,
“about a year [later], ” to ask for trial
transcripts and an explanation for not having filed a direct
appeal on Petitioner's behalf. (Pet'r's Aff. 53
¶ 10.) Evidently after receiving no response, Petitioner
wrote North Carolina Prisoner Legal Services
(“NCPLS”) on April 28, 2014, seeking assistance
in pursuing an appeal. (Pet'r's Letter to NCPLS 54,
Doc. No. 1.) As noted, the certiorari petition filed by
NCPLS, seeking review of Petitioner's trial judgment, was
denied on May 13, 2015. See discussion,
supra, at 1-2 & n.1. Petitioner did not ...