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Hansford v. Cobb

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

February 26, 2019

THOMAS WAYNE HANSFORD, Petitioner,
v.
AMANDA COBB, Respondent.[1]

          ORDER

          Frank D. Whitney, Chief United States District Judge.

         THIS 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).

         I. BACKGROUND

         Petitioner 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.

         On 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 37-39.)

         Next, 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. 1.[2] 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., Docket Sheet.

         Petitioner 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.

         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 ...

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