Deyton

Filing 6

ORDER granting petitioners Motions to Hold Federal Habeas Proceedings in Abeyance #s 3 are GRANTED and this action is STAYED pending disposition by the North Carolina Supreme Court of petitioners applications for writs of certiorari (see order for further details and deadlines). Signed by Magistrate Judge Dennis Howell on August 20, 2010. Associated Cases: 1:10-cv-00127, 1:10-cv-00128 and 1:10-cv-00129.(nll)

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA A S H E V IL L E DIVISION 1 :1 0 cv 1 2 7 , 1:10cv128, and 1:10cv129 J O S IA H JACOB DAYTON, P e t i t io n e r , V s. A L V I N W. KELLER, Secretary of t h e North Carolina Department o f Correction; and LANDER C O R P E N I N G , Superintendent of F o o th ills Correctional Institution, R esp o n d en ts. _______________________________ A N D R E W RYAN DAYTON, P e t i t io n e r , V s. A L V I N W. KELLER, Secretary of t h e North Carolina Department o f Correction; and LANDER C O R P E N I N G , Superintendent of F o o th ills Correctional Institution, R esp o n d en ts. _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER

J O N A T H A N NEIL KONIAK,
-1-

)

P e t i t io n e r , V s. A L V I N W. KELLER, Secretary of t h e North Carolina Department o f Correction; and LANDER C O R P E N I N G , Superintendent of F o o th ills Correctional Institution, R esp o n d en ts. _______________________________

) ) ) ) ) ) ) ) ) ) ) ) )

T H IS MATTER is before the court on petitioners' Motions to Hold Federal H a b e as Proceedings in Abeyance (#3). M o tio n to Stay Proceedings P etitio n ers seek to stay these proceedings, contending that they have recently f ile d in the North Carolina Supreme Court a petition for writ of certiorari in which th ey assert the same legal contention asserted in these federal petitions. They contend th at because these actions are subject to a one-year statute of limitations under Section 2 2 4 4 ( d ) (1 ) , and because they are required to exhaust all their state remedies before b rin g in g this action as required under Section 2254(b)(1)(A), they have filed this p e titio n as a "protective petition" and request that it be held in abeyance. Motion, at 3 . On July 1, 2010, the undersigned entered an Order providing the respondent, by an d through the Attorney General of the State of North Carolina, an opportunity to

-2-

resp o n d to the request for stay. T h e court has now considered the request for stay as well as the respondents' resp o n se. It is apparent from the un-replied to response1 that petitioners failed to raise th e issues herein in a direct appeal of the state court sentences. According to the A tto rn ey General, after the appeal period ran, petitioners filed motions for appropriate r elief with the superior court. Such motions were summarily denied by the superior c o u r t, and appeal was taken to the North Carolina Court of Appeals, which afforded relief as to one count based on a defective indictment and remanded that count to state c o u r t for re-sentencing. Petitioners thereinafter filed a petition for writ of certiorari w ith the North Carolina Supreme Court seeking review of the adverse decision of the N o rth Carolina Court of Appeals. The same day they filed such petition in the North C aro lin a Supreme Court, they filed their actions in this court. The respondents point out that review by the North Carolina Supreme Court of th e denial of a post-conviction motion for appropriate relief is not required to exhaust s ta te court remedies in a non-capital offense; instead, the North Carolina Court of A p p e a l s makes the final appellate decision as to such requests for relief. N .C .G en .S tat. § 7A-28(a).

Local Civil Rule 7.1 provides the petitioner with an opportunity to reply. The court specifically allowed petitioners until August 10, 2010, to so reply. Petitioners are respectfully advised that the same Local Civil Rule requires them to notify the court if they do not intend to so reply. -3-

1

T h e Attorney General states, however, that he has no objection to the stay of th is action pending denial of the writ of certiorari by the North Carolina Supreme C o u r t. While the undersigned hesitates to delay matters, the court will grant the stay in deference to the North Carolina Supreme Court even though the possibility is r em o te that it will take up the writ. See State v. Ellis, 361 N.C. 200 (2007). In g ran tin g such brief stay, the court in no way commits itself, by either agreeing or d isag reein g , with petitioners' implicit argument, to wit, where petitioners failed to first raise the federal issue on direct appeal, and such issue is raised for the first time in state court on a motion for appropriate relief after the time for appeal has run, the one year period of limitation is revived and can then be tolled during exhaustion of state r em e d ie s as to that post-appeal motion. See Artuz v. Bennett, 531 U.S. 4 (2000). ORDER IT IS, THEREFORE, ORDERED that petitioners' Motions to Hold Federal H a b ea s Proceedings in Abeyance (#s 3) are GRANTED and this action is STAYED p en d in g disposition by the North Carolina Supreme Court of petitioners' applications f o r writs of certiorari. (1) P en d in g resolution by the North Carolina Supreme Court, respondents are relieved from answering or otherwise responding to the petition. The s ta y shall dissolve upon the petitioners' filing of the notice hereinafter

-4-

d e s c r ib e d . (2 ) U p o n receipt of the final decision of the North Carolina Supreme Court, c o u n sel for petitioners shall promptly file with this court a pleading cap tio n ed "Notice of Final Decision of the North Carolina Supreme C o u r t and Notice of Automatic Dissolution of Stay." A copy of such d ecisio n shall be annexed to the notice as an exhibit. (3) U p o n such filing, the respondents shall have 30 days within which to A n sw er or otherwise respond to the petitions.

Signed: August 20, 2010

-5-