United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon Petitioner Robert
James Johnson, Jr.'s pro se Petition for Writ of Habeas
Corpus, filed pursuant to 28 U.S.C. § 2254. (Doc. No.
is a prisoner of the State of North Carolina who, on July 22,
2003, was convicted by a Mecklenburg County jury of two
counts of first-degree murder, two counts of attempted
robbery with a dangerous weapon, and one count of possession
of a firearm by a felon. State v. Johnson, 615
S.E.2d 435, 2005 WL 1572135, at *2 ( N.C. Ct. App. 2005)
(unpublished). The trial court consolidated the first-degree
murder convictions into a single judgment and sentenced
defendant to life imprisonment without parole. Id.
The court entered consecutive sentences of 120 to 153 months
each for the remaining crimes. Id. Judgment was
entered on July 24, 2003. Id. at *1.
was affirmed by the North Carolina Court of Appeals in an
unpublished opinion issued on July 5, 2005. Id. at
*6. Petitioner's petition for discretionary review of the
Court of Appeals' opinion was denied by the North
Carolina Supreme Court on October 6, 2005. State v.
Johnson, 622 S.E.2d 501 ( N.C. 2005) (Mem). According to
Petitioner, he did not seek certiorari review in the United
States Supreme Court. (§ 2254 Pet. 2, Doc. No. 1.)
also has not sought collateral post-conviction relief by way
of a motion for appropriate relief in the state courts,
see N.C. Gen. Stat. §§ 15A-1411-1422.
(§ 2254 Pet. 3, 5.) He filed the instant habeas Petition
on September 27, 2017, when he placed it in the prison
mailing system. See Houston v. Lack, 487 U.S. 266,
267 (1988). Petitioner raises one ground for relief: that he
has been denied equal protection and due process by the
state's failure to keep an historical record of his trial
in accordance with N.C. Gen. Stat. § 7A-109. (§
2254 Pet. 5.)
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.
Statute of Limitations
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