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Carson v. North Carolina Dept. of Public Safety

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

February 27, 2014

CHARLES CARSON, Petitioner,
v.
NORTH CAROLINA DEPT. OF PUBLIC SAFETY Respondent.

ORDER

FRANK D. WHITNEY, Chief District Judge.

THIS MATTER is before the Court on an initial review of the habeas petition filed pursuant to 28 U.S.C. § 2254. See Rule 4 of the Rules Governing Section 2254 Cases.

I. BACKGROUND

According to his verified petition, Petitioner is a North Carolina prisoner who has been incarcerated since September 29, 2004, following his conviction by a jury in Mecklenburg County Superior Court on charges of first-degree burglary, larceny, assault on a government official, and resisting arrest. Petitioner was sentenced to a term of 13-years and 10-months and according to the website of the North Carolina Department of Public Safety his projected release date is November 1, 2016.

Petitioner asserts that he appealed the conviction but he does not disclose the disposition of the appeal. A search of the Westlaw database shows that Petitioner did in fact appeal his judgment. His counsel filed an Anders[1] brief contending that there were no meritorious issues for appeal. Petitioner filed a pro se brief arguing both ineffective assistance of trial and appellate counsel, and trial court error; the court of appeals rejected each of his arguments as meritless and affirmed his judgment in all respects. State v. Carson, 634 S.E.2d 273 (Table), 2006 WL 2529627 ( N.C. Ct. App.); cert. denied, 660 S.E.2d 54 ( N.C. 2008). Petitioner states that he filed a petition for relief in Mecklenburg County Superior Court although he fails to provide any information regarding the outcome however the North Carolina Supreme Court denied his petition to review the superior court order. State v. Carson, No. 609-P07-2 ( N.C. Mar. 19, 2009). In all, Petitioner avers that he filed three unsuccessful petitions in state court with the last such petition for a writ of certiorari apparently denied by the North Carolina Supreme Court in 2009.

In his § 2254 petition, Petitioner raises three grounds for relief. First, Petitioner challenges his prosecution in Mecklenburg County Superior Court contending that he was not properly notified or present for the proceedings. (Doc. No. 1 at 5, 6). Second, Petitioner appears to challenge his prosecution on account of his race. Finally, Petitioner presents another racial challenge and argues that the superior court lacked jurisdiction to try him on the criminal charges because he is black and therefore not a citizen of the United States.

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), as amended in 1996, provides in relevant part:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time 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 timely filing;
(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 retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...

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