United States District Court, W.D. North Carolina, Charlotte Division
MARCUS A. CARTER, Petitioner,
FRANK L. PERRY, Respondent.
D. Whitney Chief United States District Judge.
MATTER is before the Court upon Petitioner Marcus A.
Carter's pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. (Doc. No. 1).
is a prisoner of the State of North Carolina who, on
September 10, 2014, was convicted by a Gaston County Superior
Court jury of taking indecent liberties with a child and
disseminating obscene literature. (Pet. 1-2, Doc. No. 1.) He
was sentenced to 36-53 months imprisonment for the first
offense and 11-23 months imprisonment for the second.
November 20, 2014, Petitioner filed a motion for appropriate
relief (“MAR”) in the Gaston County Superior
Court; it was denied on December 2, 2014. (Pet.,
supra, at 3.) On September 8, 2015, Petitioner filed
a petition for writ of certiorari in the North Carolina Court
of appeals seeking review of the denial of his MAR.
See State's Resp. to Pet. for Writ of
Certiorari, State v. Carter, No. P15-691, at 1 (
N.C. Ct. App. filed Sept. 23, 2015), available at North
Carolina Supreme Court and Court of Appeals Electronic Filing
Site and Document Library,
https://ncappellatecourts.org/. It was denied on
September 28, 2015. (Pet., supra, at 6.)
filed the instant habeas Petition in this Court on June 23,
2016 when he signed and placed it in the prison mailing
system. (Pet., supra, at 14.) The Court notified
Petitioner that his habeas Petition appeared to be untimely
under 28 U.S.C. § 2244(d)(1)(A) and provided him an
opportunity to explain why it should not be dismissed as
such. (Doc. No. 3.) Petitioner subsequently filed a response
to the Court's Order. (Doc. No. 4.)
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. 28 U.S.C. § 2244(d)(2).
was entered in this case on September 10, 2014, when
Petitioner was sentenced. Petitioner had 14 days to file a
notice of appeal in the North Carolina Court of Appeals.
See N.C. R. App. P. 4(a)(2). Because he did not file
a direct appeal, Petitioner's conviction became final on
or about September 24, 2014, when the time for seeking direct
review expired. See § 2244(d)(1)(A).
federal statute of limitations then ran for 57 days until
Petitioner filed his MAR on November 20, 2014. The
limitations period was tolled until December 2, 2014, when
the court denied Petitioner's MAR.
federal statute of limitations is tolled only while “a
properly filed application for State post-conviction or other
collateral review is pending.” § 2244(d)(2).
(Order 3.) “The time that an application for state
postconviction review is ‘pending' includes the
period between (1) a lower court's adverse determination,
and (2) the prisoner's filing of a notice of appeal,
provided that the filing of the notice of appeal is
timely under state law.” Evans v. Chavis,
546 U.S. 189, 141 (2006) (citing Carey v. Saffold,
536 U.S. 214 (2002)) (emphasis added). North Carolina is
unusual, but not unique, see Saffold, 536 at 219, in
that the equivalent of a collateral appeal - a petition for
writ of certiorari - must be filed without
“unreasonable delay, ” see N.C. Rule
App. P. 21(c) (2009). The Supreme Court has instructed that,
“i]n the absence of (1) clear direction or
explanation from the [state appellate court] about the
meaning of the term [‘unreasonable delay'] in the
present context, or (2) clear indication that a particular
request for appellate review was timely or untimely, ”
the federal habeas court must itself examine the delay and
determine what the state courts would have held in respect to
timeliness. Chavis, 546 U.S. at 198.
Order notifying Petitioner that his § 2254 Petition
appeared to be untimely, the Court specifically drew
attention to the fact that Petitioner did not file a petition
for writ of certiorari in the North Carolina Court of Appeals
until September 8, 2015, and provided him an opportunity to
explain the delay. (Order 3-4, Doc. No. 3.) In his Response,
Petitioner states: “I was notified that my petition was
received late. By my calculations, I responded by the date I
received the notice. Due to mail time, the days were
miscalculated. I would ask that you please consider not
cancelling my petition.” (Pet'r's Resp., Doc.
No. 4.) ...