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Stevens v. Perry

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

January 27, 2017

RUSSELL WAYNE STEVENS, Jr., Petitioner,
v.
FRANK L. PERRY, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court upon Petitioner Russell Wayne Stevens, Jr.'s pro se Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1).

         I.PROCEDURAL HISTORY

         Petitioner is a prisoner of the State of North Carolina who, on May 5, 2008, pled guilty, pursuant to a plea deal, in Cleveland County Superior Court to one count of first degree kidnapping, one count of sale or delivery of a controlled substance to a minor, one count of first degree sexual exploitation of a minor, and one count of taking indecent liberties with child. (State's Resp. to 2016 Cert. Pet. 87, Doc. No. 1-3.)[1] The State dismissed charges of statutory rape of a 13, 14, or 15 year-old by a defendant who is at least six years older, employing or permitting a minor to assist in an obscene exhibit, possession of burglar's tools, speeding, and reckless driving. (Tr. of Plea 11, Pet'r's Ex. 2, Doc. No. 1-3.) The court consolidated judgment for the first three convictions and sentenced Petitioner to 132-168 months in prison. The court entered a suspended 21-26 month sentence for the indecent liberties conviction.

         Petitioner did not file a direct appeal. On September 28, 2009, he filed a petition for writ of certiorari in the North Carolina Court of Appeals, which was dismissed on October 12, 2009. Thereafter, Petitioner filed numerous Motions for Appropriate Relief (“MARs”) in the Cleveland County Superior Court and petitions for writ of certiorari in the North Carolina Court of Appeals, all of which were dismissed or denied.[2] Petitioner's most recent certiorari petition was denied on August 15, 2016. (Order Den. 2016 Cert. Pet. 95, Doc. No. 1-3.)

         Petitioner filed the instant § 2254 Petition in this Court on November 10, 2016, when he placed it in the prison mail system. (Pet. 15, Doc. No. 1.) In it, Petitioner claims that the State withheld exculpatory material evidence from the defense, in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Specifically, he alleges the State suppressed evidence that the victim had previously made false accusations of sexual assault against at least four other men, and that the victim admitted to the prosecutor “that she had falsely accused [Petitioner].” (Pet. 5.) He also claims that the prosecutor destroyed DNA evidence from the case without notifying him prior to its destruction. (Pet. 5.)

         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.STATUTE OF LIMITATIONS

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 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 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 the ...

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