Opinion
No. 2:94-cr-00589-DCN-2 No. 2:12-cv-00924-DCN
07-27-2015
SOLOMON DUKES, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
NOTICE OF INTENT TO CONSIDER STATUTE OF LIMITATIONS
The court informs the parties that it is inclined to consider, sua sponte, the timeliness of petitioner Solomon Dukes, Jr.'s ("Dukes") motion to vacate, set aside, or correct his federal sentence brought pursuant to 28 U.S.C. § 2255. See Day v. McDonough, 547 U.S. 198, 209 (2006) (finding that district courts are permitted, but not required, to consider the timeliness of a habeas petition sua sponte); see also United States v. Harris, 582 F. App'x 241 (4th Cir. 2014) (unpublished) (noting that "[a] district court is 'permitted, but not obliged, to consider, sua sponte, the timeliness of a . . . prisoner's habeas petition." (quoting Day, 547 U.S. at 209) (alteration in original)); Taylor v. United States, 518 F. App'x 348, 349 (6th Cir. 2013) (affirming district court's sua sponte dismissal of § 2255 petition on timeliness grounds citing Day).
The court notes that the government has raised a statute of limitations argument, although not until the hearing held on December 3, 2014—more than two and a half years after Dukes initially filed his petition. The government had not previously raised the issue in any brief or pleading. Therefore, the court is inclined to treat the defense as forfeited and will raise the issue sua sponte. See United States v. Olano, 507 U.S. 725, 733 (1993) ("[F]orfeiture is the failure to make the timely assertion of a right."); Wood v. Milyard, --- U.S. ---, 132 S. Ct. 1826, 1833 (2012) ("[A]ffirm[ing] a federal district court's authority to consider a forfeited habeas defense."). However, the parties may address this issue in their briefing if they wish. --------
By this notice, the court provides the parties, as required, "fair notice and an opportunity to present their positions." See Day, 547 U.S. at 210. Petitioner shall have 15 days from the date of this order to file a brief addressing the statute of limitations issue. The government shall have 10 days from the filing of Dukes's brief to file a response.
AND IT IS SO ORDERED.
/s/ _________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
July 27, 2015
Charleston, South Carolina