United States District Court, W.D. North Carolina, Asheville Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court on initial review of
Petitioner Carlton Eugene Anderson's pro se Petition for
Writ of Habeas Corpus, 28 U.S.C. § 2254. (Doc. No. 1).
is a prisoner of the State of North Carolina who was
convicted by a Jackson County Superior Court jury of
first-degree murder. State v. Anderson, 484 S.E.2d
543, 544 ( N.C. 1997). The trial court sentenced Petitioner
to life imprisonment. Id. at 545. The North Carolina
Supreme Court affirmed Petitioner's judgment by published
opinion on May 9, 1997. Id. at 546.
filed a petition for writ of habeas corpus in the Jackson
County Superior Court on February 13, 2017; it was denied on
March 1, 2017. (Order on Writ of Habeas Corpus, Doc. No. 1-1
at 17.) He subsequently filed a petition for writ of
certiorari in the North Carolina Supreme Court seeking review
of the Superior Court's order; it was dismissed on May 3,
2017. (Order on Cert. Pet., Doc. No. 1-1 at 18.)
filed the instant § 2254 habeas Petition in this Court
on September 2, 2017, when he placed it in the prison mail
system (§ 2254 Pet. 15, Doc. No. 1). See Houston v.
Lack, 487 U.S. 266, 267 (1988). Petitioner states he was
sentenced under North Carolina's Fair Sentencing Act
(“FSA”) (Pet'r's Mem. 4, Doc. No. 1)
which provided that a prisoner sentenced to life in prison
for first-degree murder became eligible for a parole status
review after serving 20 years of his sentence, N.C. Gen.
Stat. § 15A-1371(a)(1) (1981) (amended 1993; repealed
1994). If parole was denied, the state parole commission was
required to review the prisoner's parole status annually
thereafter, until parole was granted. § 15A-1371(b)(2)
(repealed 1993). Although subsequently repealed, the parole
provisions of the FSA remain applicable to sentences based on
offenses, like Petitioner's, that occurred before October
1, 1994. See Structured Sentencing Act, ch. 538,
sec. 56, 1993 N. C. Sess. Laws.
2008, however, the North Carolina General Assembly passed a
law limiting the frequency of parole reviews for inmates
convicted of first-degree murder and sentenced under the FSA.
See Act of July 18, 2008, 2008 N. C. Sess. Law
2008-133 (H.B. 1624). The new law went into effect on October
1, 2008, and provides for parole-status review every three
states that he became eligible for parole review in 2015.
(Pet'r's Mem. 4.) By letter dated March 5, 2015, the
North Carolina Post-Release Supervision and Parole Commission
informed Petitioner that it had reviewed his case and decided
not to grant him parole at that time. (Comm. Letter, Doc. No.
1-1 at 14.) The letter further informed Petitioner that his
parole status is scheduled for review again on February 4,
2018. (Comm. Letter.)
contends the Commission denied him due process by failing to
review his case for parole annually as required by the FSA.
(§ 2254 Pet. 5.) He also contends that the 2008 law
changing the frequency of parole status review subjects him
to increased punishment in violation of the Ex Post Facto
Clause. (§ 2254 Pet. 7.)
Court notes at the outset that Petitioner is not challenging
his underlying criminal judgment. Instead, he challenges
parole procedures applied to his sentence. The Fourth Circuit
Court of Appeals has typically found such challenges to be
contesting the “execution” of a sentence. See
In re Wright, 826 F.3d 774, 777 (4th Cir. 2016) (citing
Fontanez v. O'Brien, 807 F.3d 84, 87 (4th Cir.
2015) (finding a petitioner to be challenging the
“execution of [his] sentence” where he
“d[id] not seek to have [the original sentencing] order
set aside”); United States v. Miller, 871 F.2d
488, 490 (4th Cir. 1989) (per curiam) (finding that a
“claim for credit against a sentence” challenges
the “execution of the sentence rather than the sentence
itself”)). In In re Wright, the Fourth Circuit
held that convicted state prisoners' petitions
challenging the execution of a sentence are to be governed by
§ 2254, rather than 28 U.S.C. § 2241. 826 F.3d at 779
(“[H]abeas petitions of prisoners who are ‘in
custody pursuant to the judgment of a State court' should
be treated as ‘applications under section 2254' . .
., even if they challenge the execution of a state
sentence.”) (footnote omitted). Therefore, all of
§ 2254's statutory requirements apply. See
id. at 783.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides a statute of limitation 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