United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court upon Petitioner Thomas
Wayne Hansford's pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Also
before the Court are Petitioner's Motion to proceed in
forma pauperis (Doc. No. 2) and Motion for Appointment of
Counsel (Doc. No. 3).
is a prisoner of the State of North Carolina who pled guilty
on August 18, 2016, by entering an Alford plea in
Mecklenburg County Superior Court to one count of trafficking
methamphetamine. The trial court sentenced him to an active
term of 70-93 months' imprisonment. (§ 2254 Pet. 1,
Doc. No. 1.) Petitioner did not file a direct appeal.
April 21, 2017, he filed a motion for appropriate relief
(“MAR”) in the trial court, which was denied on
the merits on April 27, 2017. (Order Den. MAR, Doc. No. 1-1
at 23-24.) Between those two dates, Petitioner filed a
“Supplemental MAR, ” which the trial court denied
on May 3, 2017. (Order Den. Suppl. MAR, Doc. No. 1-1 at
Petitioner filed a petition for writ of certiorari in the
North Carolina Court of Appeals on April 13, 2018.
See Cert. Pet., Hansford v. North Carolina,
P18-241 ( N.C. Ct. App. Apr. 3, 2018) Doc. No.
It was dismissed on April 17, 2018, “due to failure to
attach necessary supporting documents. See N.C. R.
App. P. 21(c).” See Spec Order, id.,
filed the instant federal habeas Petition on May 4, 2018,
when he placed it in the prison mail system. See Houston
v. Lack, 487 U.S. 266, 267 (1988). He claims he was
denied the effective assistance of counsel when trial counsel
represented him at the plea hearing after withdrawing as his
attorney, and because counsel refused to raise any issues
Petitioner requested. He also claims law enforcement
installed a GPS tracking device and a “listening”
device in his car in violation of the Fourth Amendment.
Finally, he claims that his right to due process was violated
because the judge who accepted his Alford plea and
sentenced him also signed the warrant authorizing
installation of the GPS device.
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