United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on an initial review of Petitioner
Christopher Charles Harris's pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No.
is a prisoner of the State of North Carolina who was
convicted on October 14, 2013 by an Iredell County Superior
Court jury of three counts of statutory rape of a person who
is 13, 14, or 15 years old. The court sentenced Petitioner to
three consecutive terms of 240 to 297 months imprisonment.
State v. Harris, 768 S.E.2d 64 ( N.C. Ct. App. 2014)
appealed, and on December 16, 2014, the North Carolina Court
of Appeals issued a decision upholding Petitioner's
convictions. Id. Petitioner did not file a petition
for discretionary review (“PDR”) in the North
Carolina Supreme Court. (Pet. 3, Doc. No. 1.)
to Petitioner, he mailed a motion for appropriate relief
(“MAR”) to the Iredell County Superior Court on
November 4, 2015. (Pet. 14-15.) Petitioner has attached as an
exhibit what purports to be a copy of the Alexander
Correctional Institution's log of outgoing legal mail
that shows entries on November 5, 2015, for mailings by
Petitioner - one to the Iredell County Clerk of Court and the
other to the Iredell County District Attorney. (Mail Log 36,
Pet'r's (unnumbered) Exs., Doc. No. 1-2.) Petitioner
asserts that he wrote a letter to the Clerk of Court on
January 26, 2016, inquiring about the status of his MAR and
received a letter in response, on May 18, 2016, that the
Clerk's office had not received his MAR. (Pet. 15.)
Petitioner states that he then mailed the Clerk a copy of the
MAR but provides no other details. (Pet. 15.) Finally,
according to Petitioner, his wife hand-delivered a copy of
the MAR to the Iredell County Clerk's Office on August 9,
2016. (Pet. 15.)
MAR was denied on August 26, 2016. (Order Den. MAR 54,
Pet'r's (unnumbered) Exs., Doc. No. 1-2.) His
petition for writ of certiorari, seeking review of the order
denying his MAR, was, itself, denied on October 25, 2016, by
the North Carolina Court of Appeals. (Order Den. Cert. Pet.
1, Pet'r's (unnumbered) Exs., Doc. No. 1-2.)
filed the instant § 2254 Petition in this Court on
October 28, 2016, when he placed it in the prison mail
system. He raises claims of ineffective assistance of trial
STANDARD OF REVIEW
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.
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 date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review. § 2244(d)(1)(A). The limitations
period is tolled during the pendency of a properly filed
state post-conviction action. § 2244(d)(2).
was entered in this case on October 14, 2013, when Petitioner
was sentenced. The North Carolina Court of Appeals issued its
opinion affirming Petitioner's judgment on December 16,
2014. He then had thirty-five days to file a PDR in the North
Carolina Supreme Court. See N.C. R. App. P. 15(b)
(“A petition for review following determination by the
Court of Appeals shall be . . . filed and served within
fifteen days after the mandate of the Court of Appeals has
been issued to the trial tribunal.”); N.C. R. App. P.
32(b) (“Unless a court orders otherwise, its clerk
shall enter judgment and issue the mandate of the court
twenty days after the written opinion of the court has been
filed with the clerk.”). Petitioner did not seek
discretionary review during that thirty-five-day time frame.
Therefore, his judgment became final on or about January 20,
2015, when the time for seeking direct review expired.
See § 2244(d)(1)(A); Gonzalez v.
Thaler, 132 S.Ct. 641, 656 (2012) (“We hold that,
for a state prisoner who does not seek review in a
State's highest court, the judgment becomes
‘final' on the date that the time for seeking such
federal statute of limitations then ran for 365 days until it
expired on or about January 20, 2016, more than nine months
before Petitioner filed the instant § 2254 habeas
Petition. Thus, absent equitable ...