United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court upon Petitioner Kalvin
Nathaniel McBride'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, according
to his Petition, pled guilty in Mecklenburg County Superior
Court on November 15, 2007, to second-degree murder and four
counts of robbery with a dangerous weapon. (Pet. 1, Doc. No.
1.) He was sentenced to a minimum of 193 months and a maximum
of 250 months in prison. (Pet. 1.) He did not file a direct
appeal. (Pet. 2.)
19, 2016, Petitioner filed a motion for appropriate relief
(“MAR”) in the Mecklenburg County Superior Court.
(Pet. 3.) It was denied on September 16, 2016. (Pet. 3.) He
filed a petition for writ of certiorari in the North Carolina
Court of Appeals, seeking review of the denial of his MAR; it
was denied on October 21, 2016. (Pet. 3-4.)
filed the instant habeas Petition in this Court on January
13, 2017, when he placed it in the prison mailing system.
(Pet. 14.) After conducting an initial review, 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. 5.) Petitioner has responded (Doc. No. 6),
and this matter is ripe for review.
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 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