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McBride v. Hunt

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

July 26, 2017

KALVIN NATHANIEL MCBRIDE, Petitioner,
v.
NORA HUNT, et al., Respondents.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS 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).

         I. BACKGROUND

         Petitioner 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.)

         On July 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.)

         Petitioner 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.

         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. DISCUSSION

         The 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 ...

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