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Huskey v. Hooks

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

May 31, 2018

ANTHONY JAMAL HUSKEY, Petitioner,
v.
ERIK A. HOOKS, Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court upon Anthony Jamal Huskey's pro se Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)

         I.BACKGROUND[1]

         Petitioner is a prisoner of the State of North Carolina, who, on February 5, 2007, pled guilty in Gaston County Superior Court to second degree murder with aggravating factors, two counts of assault with a deadly weapon with the intent to kill inflicting serious injury (“AWDWIKISI”), and first degree burglary. The trial court consolidated the AWDWIKISI convictions and imposed three consecutive active sentences of 200-249 months for the murder, 100-129 months for AWDWIKISI, and 85-111 months for the burglary.[2]

         Petitioner did not file a direct appeal, but on June 4, 2014, he filed a motion for appropriate relief (“MAR”) in the Gaston County Superior Court, challenging the judgments entered upon his convictions. On December 2, 2014, Petitioner filed an amended MAR.

         On December 19, 2014, the court denied Petitioner's amended MAR on the merits. On June 29, 2015, Petitioner filed a petition for writ of mandamus in the North Carolina Court of Appeals seeking to compel the trial court to rule on his “original” MAR. The petition was dismissed on July 6, 2015, because Petitioner had failed to attach supporting documents. On July 16, 2015, Petitioner filed a second petition for writ of mandamus seeking the same relief. The petition was dismissed as moot on July 31, 2015.

         Petitioner filed a petition for writ of certiorari on June 15, 2016, seeking review of the trial court's order denying his amended MAR. According to the instant § 2254 Petition, that certiorari petition was denied by the state appellate court on July 1, 2016. (§ 2254 Pet. 6, Doc. No. 1.)

         Petitioner filed the instant federal habeas Petition on December 29, 2016, when he placed it in the prison mail system. (§ 2254 Pet. 14.) He raises claims alleging that: 1) trial counsel rendered ineffective assistance; 2) his indictments for murder, AWDWIKISI, and burglary were duplicitous; 3) he was sentenced to more active time than his codefendants; and 4) he was interrogated “off sight” and not taken to the jail for booking until he confessed. (§ 2254 Pet. 5-8.) Because the Petition appeared to be time-barred under 28 U.S.C. § 2244(d)(1)(A), the Court issued Petitioner notice and provided him an opportunity to explain why his Petition should not be dismissed as untimely. (Doc. No. 5.) Petitioner has responded. (Doc. No. 6.)

         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 one-year statute of limitations for § 2254 petitions. 28 U.S.C. § 2244(d)(1). A § 2254 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court 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).[3] The limitations period is tolled during the pendency of a properly filed state post-conviction action. § 2244(d)(2).

         Judgment was entered in Petitioner's criminal case on February 5, 2007, when he was sentenced. To the extent he retained a right to a direct appeal in the North Carolina Court of Appeals subsequent to his guilty plea, Petitioner had 14 days to file notice of appeal, see N.C. R. App. P. 4(a)(2), which he did not do. Therefore, his conviction became final on or about February 19, 2007, 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 fully expired on or about February 19, 2008, almost nine years before Petitioner filed his § 2254 Petition. His MAR and subsequent filings in the state courts did not toll or restart the federal statute of limitations. See Minter v. Beck, 230 F.3d 663, 665-66 (4th Cir. 2000) (recognizing that state applications for collateral review cannot revive an already expired ...


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